iiiiiB 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


A  TREATISE 


Law  Relating  To 


Gifts  And  Advancements 


BY 


^Y.  W.  THORNTOISr 

OF  THE  Indianapolis  Bab. 

Author  of   "Eailboad   Fences   and   Private   Crossings," 
"Lost  Wills,"  Etc. 


PHILADELPHIA 
T.  &  J.  W.  JOHNSON  &  CO. 

1893 


T 
T3974^ 


Copyright,  1893, 
By  W.  W.  Thornton. 


^ 
^ 


PREFACE. 


.  It  is  difficult  to  confine  the  subject  of  Gifts  within  reasonable 
limits.  It  is  almost  as  broad  as  that  of  Contracts.  The  leading 
features  of  a  gift  are  not  so  numerous,  but  the  difficulty  lies  in 
their  application.  The  complex  affairs  of  modern  civilization 
every  day  render  this  more  difficult,  and  call  for  a  modifica- 
tion of  the  stern  rigor  of  the  common  law. 

So  closely  are  the  subjects  of  Gifts  and  Advancements  con- 
nected that  the  work  would  be  incomplete  were  treatment  of 
the  latter  omitted.  On  this  subject  the  book  may  be  said  to 
be  a  pioneer. 

It  has  been  the  author's  aim  frequently  to  state  cases  at 
length  in  connection  with  the  principle  then  under  discussion, 
in  order  to  illustrate  it  and  show  how  it  has  been  applied,  and 
in  this  way  bring  out  the  conflict  in  the  cases.  He  believes  he 
has  been  moderately  successful  in  his  undertaking,  and  trusts 
that  the  profession  will  derive  some  benefit  from  an  exami- 
nation of  the  work. 


W.  W.  Thornton, 


Indianapolis,  June  1,  1893. 


^400&3 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DONATIO    INTER   VIVOS. 

SECTION  PAGE 

1.  Two  Classes — Inter  Vivos  and  Mortis  Causa, 1 

2.  Definition  of  Gift  Inter  Vivos, 1 

3.  Essentials  of  Valid  Gift, "^ 

4.  Consideration, 3 

5.  Consideration  Disproportionate  or  Nominal, 4 

6.  Love  and  Affection  a  SufBcient  Consideration  to  Support  a  Conveyance  of 

Real  Estate, 4 

7.  Gift  or  Sale, 6 

8.  Gift  or  Loan, 7 

9.  Gift  or  Loan — Misunderstanding, 9 

10.  An  Advancement  Not  a  Gift, 11 

11.  Gift  Indefinite, H 

12.  Good  Only  in  Part, 12 

13.  Lex  Loci,     12 

CHAPTER  II. 

DONATIO    MORTIS    CAUSA. 

14.  The  Earliest  English  Case, 13 

15.  How  Such  Gifts  Are  Regarded  by  the  Courts, 15 

16.  Bracton's  Definition  and  Classes, 17 

17.  Justinian's  Definition, 18 

18.  Swinburne's  Definition, 19 

19.  Definitions, 20 

20.  Resemblance  to  a  Legacy, 22 

21.  Difference  Between  a  Gift  Inter  Vivos  and  Mortis  Causa, 23 

22.  Donatio  Mortis  Causa  Not  Affected  by  Wills'  Act, 24 

23.  When  Can  be  Made — Last  Sickness, 24 

24.  In  Peril  of  Death, 27 

25.  In  E.Ttremis, 28 

26.  Existing  Disorder— Burden  of  Proof, 28 

27.  The  Threatened  Danger  to  His  Life  the  Criterion — Belief  of  Donor,     .    .  31 

28.  Gift  in  Case  of  Death  When  Not  in  Apprehension  of  It, 31 

29.  Surgical  Operation, 32 

V 


vi  Table  of  Contents. 

SKCnON  PAGE 

30.  Cioing  on  a  Journey 32 

31.  tjuicide, 32 

'i'L  Gift  by  Keaaon  of  Old  Age, 33 

33.  A  Soldier'8  Gift, 33 

34.  Length  of  Time  Intervening  Between  Gift  and  Deatli, 35 

35.  Gift  By  Deed  or  in  Writing, 36 

36.  Donatio  Causa  Mortis  in  Trust  for  Donee, 36 

37.  A  Conditional  Gift  Implied, 37 

38.  Conditional  Donatio  Causa  Mortis, 37 

39.  Gift  Inter  Vivos  During  Last  Sickness, 38 

40.  Will  Insufficiently  Executed  Cannot  Be  Deemed  a  Donatio  Causa  Mortis,  38 
4L  Gift  of  Entire  Estate  Cannot  be  Made  Mortis  Causa, 39 

42.  Effect  of  a  Recovery  from  Illness, 41 

43.  Donee  Dying  Before  Donor,     .       ■ 42 

44.  Revocation  During  Lifetime  by  Duiio, 43 

45.  Revocation  by  Will, 43 

46.  When  Title  to  Thing  Given  Passes, 44 

47.  Administrator  or  Executor  Has  No  Control  Over  Property  Given — Proof 

in  Probate  Court, 45 

48.  Contribution  With  Legatees, 45 

49.  Subject  to  Donor's  Debts, 46 

CHAPTER  III. 

DONOR  AND  DONEE. 

50.  General  Rule — Conversion, 47 

51.  Donee  Must  Be  Certain, 47 

52.  Infant  Donor, 48 

53.  Infant  Donee, 48 

54.  Husband  to  Wife, • 49 

55.  Wife  as  Donor, 51 

56.  Wife  as  Donee  of  Third  Persons, 53 

57.  Foreigner  as  Donee, 53 

58.  Legislature  as  Donor, 54 

59.  Slave  as  Donee, 54 

60.  Lunatic  as  Donor, 54 

61.  One  of  Two  or  More  Donees  Incapable  of  Taking, 55 

62.  Administrator  or  P^xecutorof  Donor, 55 

63.  Donor's  Gift  to  His  Illegitimate  Children  or  Mistress, 55 

64.  Dead  Person — Donee  in  Ventre  sa  Mere, 55 

65.  Private  Corporation, 56 

66.  Gift  to  Officer  of  Corporation  to  Unduly  Influence  His  Action 57 

67.  Corporation  as  Donee, 58 

68.  Municipal  Corporation  as  Donor, 58 

69.  Municipal  Corporation  as  Donee, 59 


Table  of  Contents.  vii 


CHAPTER  IV. 

INTENTION    AND    PROMISE. 

SECTION  PAGE 

70.  Intent  Essential  to  Validity  of  Gift, 61 

71.  Expression  of  Intent, 62 

72.  Mere  Intention  to  Make  a  Gift, 63 

73.  Concealed  Intention, 64 

74.  Promise  to  Make  a  Gift, • 64 

75.  Intention  to  Give  Must  be  Clear — Proof, 65 

76.  Gift  Inter  Vivos  to  Take  Effect  in  the  Future,       66 

77.  Gift  of  Property  Not  Yet  Owned  by  Donor, 66 

78.  Gift  Inter  Vivos  to  Take  Effect  After  Death  of  Donor, 66 


CHAPTER  V. 

ACCEPTANCE. 

79.  Acceptance  Essential, 68 

80.  Acceptance  Must  be  in  Lifetime  of  Donor, 68 

81.  Acceptance  Must  be  Before  Revocation,      69 

82.  Intelligent  Acceptance, 69 

83.  When  Acceptance  Unnecessary, ''^0 

84.  Acceptance  of  Donatio  Mortis  Causa,       70 

85.  Acceptance  for  Donee  by  Third  Person,       70 

86.  Presumption  of  Acceptance  by  Adult 71 

87.  Acceptance  by  Minor, '2 

88.  When  Acceptance  Not  Presumed, 72 

89.  Terms  of  Acceptance,      73 

90.  Evidence  of  Acceptance, '^ 

91.  Effect  of  Disclaimer, 74 


CHAPTER  VI. 

CONDITIONAL    GIFT. 

92.  Parol  Condition — Contingent  Gift, 75 

93.  Reservation  of  Right  to  Use  Gift  in  Certain  Contingency,      77 

94.  Gift  Conditioned  to  Pay  Part  of  It  to  Third  Person, 77 

95.  Gift  Conditional  tliat  Donee  have  Children  Born, 78 

96.  Gift  Over  if  Donee  "  Die  Without  Heirs," 78 

97.  Donatio  Mortis  Causa, 79 

98.  Gift  .Conditioned  on  Marriage, 80 

99.  Donee  Takes  Gift  With  Condition  Annexed— Estoppel, 80 

100.  Performance  of  Condition, 80 


viii  Table  of  Contents. 


CHAPTER  VII. 

CHANGING   GIFT   TO   CONTRACT. 

SECTION  PAGE 

101.  Gift  Cannot  be  Changed  to  a  Charge, 82 

102.  Power  to  Sell  Not  Convertible  into  Power  to  Give, 83 

103.  Gift  Changed  to  a  Trust, 83 

104   Gift  Changed  to  an  Advancementj 84 

CHAPTER  VIII. 

REVOCATION. 

105.  Donor  Cannot  Revoke  a  Gift  Inter  Vivos, 85 

106.  Revocation  of  Incompleted  Gift, 87 

107.  Minor  May  Revoke — Creditors, 89 

108.  Gift  for  Benefit  of  Third  Person, 90 

109.  Estoppel  to  Deny  Gifts, 91 

110.  Revocation  of  Trust, 91 

111.  Reservation  of  Right  to  Revoke  Gift, 92 

112.  Deed  of  Gift  Mortis  Causa  Cancelled, 93 

113.  Fraud  or  Undue  Influence 93 

114.  Revocation  of  Conditional  Gift, 93 

115.  Delivery  in  Escrow, 93 

116.  Revocation  by  Death, 94 

117.  Wedding  Presents,  Intended  Marriage  Broken  Off, 94 

118.  Unintended  Gift— Mistake, 95 

119.  Immorality  Does  Not  Revoke, 95 

120.  Chani^e  of  Position  by  Donee  in  View  of  Gift — Acquiescence,     ....  93 

121.  Gift  of  Real  Estate  by  Parol, 97 

122.  Redelivery, 97 

123.  Donatio  Mortis  Causa, 98 

124.  Burden  to  Show  Non-Revocation  in  a  Voluntary  Deed  of  Settlement,   .  99 

125.  Revocation  Under  Spanish  and  Mexican  Laws, 99 

126.  Revocation  by  Birth  of  Child, 100 

127.  Civil  and  French  Law, 100 

CHAPTER  IX. 

DELIVERY. 

128.  Introduction, 103 

129.  Definition  of  Delivery, 104 

130.  Rule  Requiring  Delivery  the  Same  in  Gifts  Inter  Vivos  and  Mortis 

Causa,     104 

131.  Delivery  Essential, • 105 

132.  Reason  for  Rule  Requiring  a  Delivery, 106 


Table  of  Contents.  ix 

SECTION  PAGE 

133.  Mere  Intention  Cannot  Take  the  Place  of  Delivery, 109 

134.  Delivery  Must  be  Sufficient  to  Pass  Title— Test, 109 

135.  Parting  with  Dominion  Over  the  Thing  Given, 110 

136.  Mere  Possession  by  Donee  Not  Sufficient, Ill 

137.  Eight  to  Use  Distinguished  from  Possession, 112 

138.  Actual  and  Manual  Delivery, 114 

139.  Actual,  Constructive,  or  Symbolical  Delivery, 114 

140.  The  Situation  of  the  Subject-Matter  of  the  Gift  Must  be  Considered,     .116 

141.  Article  Incapable  of  Delivery, 117 

142.  Conditional  Delivery, 117 

143.  Time  of  Delivery, 118 

144.  Future  Delivery, 118 

145.  Condition  and  Intention  of  the  Donor  Must  be  Considered — Arbitrary 

Enforcement  of  Rule, 120 

146.  Declarations  of  Donor  Insufficient  to  Show  a  Delivery, 121 

147.  Donor  Believing  that  a  Further  Act  was  Necessary  to  Complete  Gift,    .  121 

148.  Act  of  Delivery  Slight  or  Ambiguous  but  Intent  and  Belief  of  Donor 

Clear,      ....        122 

149.  Baron  Pollock's  Decision 123 

150.  Delivery  by  Way  of  Bailment, 124 

151.  Donee  Unaware  of  Thing  Given,  Although  He  Knew  that  Something 

of  Value  was  Presented 124 

152.  Donee  in  Possession  at  Time  of  Gift, 125 

153.  Forgiving-Debt, 127 

154.  Gift  of  a  Part  of  a  Debt — Impossible  to  Make  a  Delivery, 129 

155.  Gift  of  Part  of  Article, •    ....  130 

156.  Delivery  of  Account  Owed  by  Donee  to  Donor, 131 

157.  Article  Given  Not  Present  at  Time  and  Place  of  Delivery, 132 

158.  Delivery  of  Key  to  Chest  or  Drawer, 133 

159.  Delivery  of  Key  of  Box  in  Donor's  Bank — Separation  of  Amount  of 

Money  Given  from  Bulk, 138 

160.  Delivery  to  Third  Person  for  Donee, 139 

161.  Delivery  to  Agent  of  Donor, 141 

162.  Donor  Revoking  Mandate  to  Deliver  to  Donee, 142 

163.  Delivery  by  Executor  or  Administrator, 143 

164.  Donor  Repossessing  Himself  of  the  Gift  After  Delivery  to  Agent,  .    .    .  144 

165.  Revocation  of  Agent's  Authority  After  Delivery  Made, 144 

166.  Delivery  to  Third  Person  for  Future  Delivery  to  Donee, 144 

167.  Delivery  to  Third  Person,  But  No  Actual  Delivery  to  Donee  Until  After 

Donor's  Death, 145 

168.  Presumption  Arising  from  Proof  of  Delivery  to  a  Third  Person,    .    .    .  147 

169.  Between  Meml)ers  of  the  Same  Family — Husband  and  Wife,  .        ...  148 

170.  Husband  Purchasing  Gift  for  Wife, 152 

171.  Horse  Retained  by  Husband  in  His  Own  Stable — Horse  in  Livery  Stable,  154 

172.  Remarks  on  Sufficiency  of  Delivery  by  Husband  to  Wife, 154 

173.  Money  Deposited  in  Joint  Names  of  Husband  and  Wife, 156 


Table  of  Contents. 


SECTION  PAGH 

174.  Delivery  by  Parent  to  Child — Infant, 157 

175.  Possession  of  Donor — Parent  in  Possession  of  Donee — Infant — Guardian,  159 

176.  Instances  of  Imperfect  Delivery  by  Fatlier  to  Cliild, 160 

177.  Purchase  of  Gift  by  Parent  for  His  Child, 162 

178.  Purchase  by  the  Child  with  the  Thing  Given,  Eight  of  Child  to  the 

Article  Purchased — Sale  of  Gift,      162 

179.  Gift  by  Father  to  Child  of  Lottery  Ticket, 163 

180.  Gift  by  Parent  to  Adult  Child— Person  a  Member  of  His  Family,  ...  164 

181.  Property  Given  in  Adverse  Possession  of  Third  Person, 166 

182.  Gift  of  Growing  Crop, .    .  167 

183.  Gift  of  Income  of  Mill, 167 

184.  Gift  of  Registered  Bonds, 168 

185.  Shifting  Gift  from  One  Drawer  to  Another, 168 

186.  Gift  of  Money  Represented  by  a  Kote, 168 

187.  Delivery  of  Siiares  of  Stock, 169 

188.  Gift  by  Surety  to  Principal  of  Debt  He  Pays, 169 

189.  Gift  by  Deed  or  Writing  Dispenses  with  Delivery  of  Article  Given,      .  170 

190.  Unsealed  Instrument  Not  Sufficient  to  Dispense  with  Delivery  of  Thing 

Given — Estoppel, 171 

191.  Gift  by  Deed  of  Reversionary  Interest, 172 

192.  Deed  InsufKcient  to  Operate  as  a  Delivery, 173 

193.  Deed  or  Writing  in  a  Donatio  Mortis  Causa, 173 

194.  Delivery  of  Deed  at  Recording  Office, 173 

195.  Order  to  Agent  to  Deliver  Gift  to  Donee, 174 

196.  Delivery  of  Receipt  Sufficient, 174 

197.  Consideration  for  Deed — Slaves, 174 

198.  Gift  by  Deed  of  Undivided  Interest, 175 

199.  Deed  Not  Produced— Destroyed, 175 

200.  Writing  Affixed  to  the  Article  Given, 175 

201.  Donor  Reserving  Interest  in  or  Use  of  Article  Given  by  Parol,  ...  176 

202.  Donor  Reserving  Interest  in  or  Use  of  Article  Given  by  Deed,  ....  177 

203.  Reservation  of  Right  to  Use  Part  of  Fund  Given, 178 

204.  Gift  of   Bonds  with  Reservation  of  the  Accruing  Annual  Interest — 

Trust, 178 

205.  Gift  of  Note  with  Reservation  of  Accruing  Interest, 180 

206.  Gift  to  be  Returned  if  Donor  Make  Demand  for  it  in  His  Lifetime,  .    .  181 

207.  Hire  of  Slave,  Animal,  or  Chattel,      182 

208.  Parol  Gift  to  Donee  for  Life,  with  Remainder  Over  to  Third  Person,     .  182 

209.  Repossession  by  or  Delivery  to  Donnr, 182 

210.  Donee  Has  Burden  to  Show  That  Redelivery  Was  Not  a  Rescission 

of  the  Gift, 185 

211.  Redelivery  or  Repossession  of  Donatio  Mortis  Causa, 185 

212.  Donee  of  Imperfect  Gift  May  Maintain  an  Action  Against  a  Wrong- 

Doer,  186 

213.  Proof  of  Delivery, 186 

214.  Question  for  Jury, 186 


Table  of  Contents.  xi 


CHAPTER  X. 

ESTABLISHMENT    OF    GIFT. 

SECTION  PAGE 

215.  Lex  Loci  Determines  Validity  of  Gift, 189 

216.  Burden  to  Show  Gift  is  on  Donee, 389 

217.  Essentially  a  Matter  of  Evidence, 190 

218.  Words  of  Gift, 191 

219.  Particularity  of  Proof, 192 

220.  Sufficiency  of  Evidence, 193 

221.  Number  of  Witnesses, 195 

222.  Prior  Declarations  of  Donor, 196 

223.  Declarations  at  Time  of  Gift, 197 

224.  Declarations  Made  Subsequent  to  the  Time  of  the  Alleged  Gift,      .    .    .  198 

225.  Subsequent   Declarations  when  Transaction  is  Doubtful  or  Donee  in 

Possession, 200 

226.  Declarations  of  Drunken  Donor  Attempting  to  Regain  Possession  when 

Sober, 201 

227.  Inoperative  Deed  to  Siiow  Declarations  of  a  Gift, 201 

228.  Reference  in  Will  to  Gift, 202 

229.  Declarations  of  Donee, 202 

230.  Declarations  to  Prove  a  Delivery, 202 

231.  Declarations  Insufficient  to  Establish  Gift, 203 

232.  Declarations  as  to  Other  Gifts, 204 

233.  Neighborhood  Reports, 204 

2S4.  Intent  of  the  Donor,      ...        205 

235.  Circumstances  Attending  Gift, ...  205 

236.  Proof  of  Gift  from  Circumstances, 206 

237.  Value  of  Gift  and  Property  of  Donor — Age  of  Donor, 207 

238.  Affection  of  Donor  for  Donee, 208 

239.  Illicit  Relations  of  Donor  and  Donee, 209 

240.  Relationship  of  Donor  and  Donee, 209 

241.  Wife  to  Husband, 209 

242.  Presumption  of  Gift  by  Wife  to  Her  Husband, 210 

243.  Gift  by  Wife  to  Husband  of  the  Rents  or  Profits  of  Her  Separate 

Estate, 210 

244.  Gift  by  Husband  to  Wife, 211 

245.  Purchase  of  Land  by  Husband  but  Conveyance  to  Wife, •    •  212 

246.  Presumption  of  Gift  by  Husband  to  Wife, 214 

247.  Parent's  Gift  to  His  Child, 215 

248.  Gift  by  Parent  to  Child  when  the  Latter  is  Married, 215 

249.  Comments  Upon  Presumption  Arising  from  Delivery  of  Property  by  a 

Parent  to  His  Child, 220 

250.  Presumption  Arising  from  Parent  Advancing  Money  to  His  Child — 

Loan, 222 

251.  Presumption  of  Gift  Arising  from  Proof  of  Possession, 223 

252.  Donee's  Access  to  Donor's  Papers  and  Securities, 224 


xii  Table  of  Contents. 

SECTION  PAGB 

253.  Presumption  that  Gift  was  a  Payment  of  a  Debt, 225 

254.  Evidence  of  Acceptance — Presumption, 225 

255.  Sanity  of  Donor, 225 

256.  Equity  will  not  Aid  an  Imperfect  Gift — Specific  Performance,     ....  225 

257.  Defendant  May  Sliow  Gift  Invalid, 226 

258.  Statute  of  Limitations, 226 

259.  Gift  to  a  Class — to  whom  as  Donee, 226 

260.  Denying  Donor's  Title,      ...        227 

261.  Administrator  or  Executor  not  Entitled  to  the  Possession, 227 

262.  Validity  of  Gift  when  Creditors  not  Concerned — Gift  Between  Kin,  .    .  227 

263.  When  Title  Passes 228 

264.  Competency  of  Donee  as  a  ^Vitness, 230 

265.  Pleading, 231 

266.  Questions  for  Jury, 231 


CHAPTER  XI. 

NOTES    AND    CHOSES    IN    ACTION. 

267.  Chose  in  Action, 232 

268.  Note  Payable  to  Order  and  Unindorsed  by  Payee, 234 

269.  Same   Continued — DufSeld   v.   Elwes — Trustee — Mortgage — Statute   of 

Frauds,  .    .    .    ,    , 236 

270.  Unassigned  Note — Question  Settled, 238 

271.  American  Decisions  Upon  Unassigned  Choses  in  Action, 239 

272.  Sealed  Note, 242 

273.  All  Unassigned  Instruments  the  Subject  of  Gift, 242 

274.  Gift  of  Note  Carries  Mortgage — Gift  of  Mortgage  Does  Not  Carry 

Note, 243 

275.  Draft  or  Bill  of  Exchange, 243 

276.  Gift  of  Part  of  Note, 244 

277.  Memorandum, 246 

278.  Non  transferable  Instrument, 247 

279.  Book  Account, 247 

280.  Gift  of  Receipt  for  the  Instrument  Given, 247 

281.  Policy  of  Insurance, 248 

282.  Gift  of  Bond  or  Note  Merged  in  a  Judgment — Gift  of  Judgment,  .    .    .  249 

283.  Statutory  Eegulations  Affecting  Transfers, 249 

284.  Note  Given  to  Equalize  Distribution  of  an  Estate — Legacy  Duty,  .    .    .  250 

285.  Check  Operates  as  an  Equitable  Assignment  of  a  Special  Deposit,     .    .  250 

286.  Personal  Representative  Collecting  Proceeds  of  Note  Given, 251 

287.  To  Whom  Pavment  Made 251 

288.  Donor's  Liability  on  his  Indorsement, 251 

289.  Gift  of  Expectancy, 252 

290.  Consideration  for  the  Note  Given — Inadequacy  of  Consideration,  .    .    .  253 

291.  Desire  or  Intention  to  Make  a  Gift  Not  SuflBcient, 254 


Table  of  Contents.  xiii 

SECTION  PAGE 

292.  Delivery  Essential  to  Validity  of  Gift, 255 

293.  Redelivery  of  Note, 255 

294.  Gift  by  Deed, 256 

295.  Production  of  Note,  Effect  Upon  Presumption  of  Ownership, 257 

296.  Forgiving  Debt, 259 

297.  Eeceipt  for  Debt, 262 

298.  Note  Made  Payable  to  Third  Person, 264 

299.  Note  Payable  to  Husband  and  Wife  or  to  Two  or  More  Persons — De- 

livery— Survivorship, 266 

300.  Note  of  Donor  Payable  to  Donee, 267 

301.  Lawson  v.  Lawson — Gift  for  Mourning, 269 

302.  Note  of  Donor  Payable  to  Donee  is  Valid, 270 

303.  Donor's  Own  Mortgage  to  Donee, 272 

304.  Subscription  to  a  Charity,  Church,  College,  etc., 273 

305.  Acceptance  of  Subscription, 276 

306.  Acceptance — Revocation — Death  of  Subscriber, 279 

307.  Who  May  Sue  Upon  Subscription, 280 

308.  Sunday  Subscriptions, 281 

309.  Conditional  Promise — Consideration, 281 

310.  Liability  of  a  Single  Donor  or  Subscriber — Mutual  Subscription  Not 

Sufficient  to  Bind  Donors, 283 

"^         CHAPTEK  XII. 

BANK    CHECKS    AND    DEPOSITS. 

311.  Division  of  Subject, 287 

Checks. 

312.  Definition  of  a  Check, 288 

313.  Checks  Not  Bills  of  Exchange, 289 

314.  Check  of  Donor  as  a  Gift  Inter  Vivos, 292 

315.  Check  of  Donor  Accepted  or  Cashed 293 

316.  Payment  Prevented  by  Donee  Until  After  the  Donor's  Death,     .    .    .    .291 

317.  Check  of  Third  Person, 296 

318.  Rights  of  Bona  Fide  Holders  of  Check  Given  Inter  Vivos  Indorsed 

But  Not  Cashed  Before  Donor's  Death, 297 

319.  Donor's  Check  Not  Valid  as  a  Donatio  Mortis  Causa, 301 

320.  Check  of  Stranger  the  Subject  of  a  Gift  Mortis  Causa, 304 

321.  No  Intention  to  Gipe  Proceeds  of  a  Check, 305 

322.  Donor's  Check  Exchanged  for  a  Stranger's  Check, 305 

Bank  Deposits. 

323.  Certificate  of  Deposit— Delivery, 306 

324.  Money  Deposited  in  Name  of  Donee, 30S 

325.  Same  Continued — Revocation — Est'  ppel 308 

326.  Acceptance  of   Deposit — Donee   Having  no  Knowledge  of  it — Donor 

Retaining  Control  Over  Deposit,      310 

327.  Gift  of  Bank-Book  Does  Not  Pass  the  Deposit, 312 


xiv  Table  of  Contents. 

SECTION  PAGE 

3:i8.   Wife  Retaining  After  Marriage  Money  Slie  Had  on  Deposit — Husband 

as  Trustee, 312 

Savings-Bank  Depdsits. 

329.  Deposit  in  Savings  Bank  in   Donee's  JSame — Gift  Inter  Vivos — Pre- 

sumption of  Acceptance, 314 

330.  Gift  of  Deposit-Book  of  a  Savings  Bank  is  a  Gift  of  the  Fund,  ....  317 

331.  Deposit-Book  of  a  Savings  Bank  Must  be  Delivered -Acquiescence,  .    .  320 

332.  Gift  of  Deposit-Book  is  Not  a  Gift  of  the  Fund— English  Rule,     ...  323 

333.  Donor  Reserving  Interest  on  Deposit, 323 

334.  Redelivery  of  Deposit-Book  to  Donor, 325 

335.  Deposit  in  Two  Names — Gift  to  the  Survivor, 326 

336.  Gift  of  a  Special  Deposit, 329 

337.  Overthrowing  Presumption  of  Gift  Arising  from  Fact  of  Deposit  in 

Alleged  Donee's  Name, 330 

Trust  Kaised  by  a  Deposit  of  Money. 

338.  Trust  Raised  by  Donor  Depositing  Money  in  Bank — Notice  of  Trust — 

Revocation, 331 

339.  Same  Subject — Retaining  Control  of  the  Fund 333 

340.  Same  Continued — Evidence — Revocation, 338 

341.  Same  Continued — Some  Massachusetts  Cases, 343 

CHAPTER   XIII. 

GIFT    OF   STOCK. 

342.  Stock  May  be  tlie  Subject  of  a  Gift, 346 

343.  Failure  to  Transfer  Stock  on  Books  of  Corporation — American  Cases — 

Acce{)tance, 347 

344.  Transfer  Upon  Books  of  Corporation  Essential  to  Validity  of  Gift — 

Trust— American  Cases, 350 

345.  Transfer  Upon  Books  of  Corporation  Essential  to  Validity  of  Gift — 

English  Cases, 351 

346.  Subscribing  for  Stock  in  Another's  Name, 352 

317.  Gift  by  Survivorship  of  Stock  in  Two  or  More  Names, 355 

348.  Gift  by  Power  of  Attorney  or  Deed — Release, 357 

349.  Transfer  on  Books,  but  Failure  to  Deliver  the  Certificate 360 

3iO.  Reserving  Power  of  Revocation, 362 

351.  Donee  Controlling  and  Receiving  Profits,  but  Not  the  Certificate  of 

Stock— Opera  Box, 362 

352.  Donor  Reserving  and  Exercising  Control  Over  Stock, 363 

353.  Recovery  of  Donor  from  Sickness 364 

354.  Purchase  with  Notice  of  Assignment, 364 

355.  Apportioning  Dividends, 365 

356.  Stock  Secretly  Given  to  a  Subscriber  in  Order  to  Influence  Others  to 

Subscribe 365 

357.  Directors  May  Not  Give  Away  the  Stock  of  their  Corporation,  ....  366 

358.  Corporators  May  Receive  Its  Stock  as  a  Gift 366 


Table  of  Contents.  xv 


CHAPTER  XIV. 

GIFT   OF    EEAL    ESTATE. 

SECTION  PAGE 

359.  Introduction, 368 

Gift  by  Deed. 

360.  Purchase  by  Donor  and  Conveyance  to  Donee  by  Vendor — Specific  Per- 

formance— Purcliase-Money  Mortgage, 368 

361.  Husband  to  Wife— Wife  to  Husband, 369 

362.  Courts  will  Kot  Enforce  a  Voluntary  Deed — Delivery  of  Deed,  ....  370 

363.  Keforming  a  Voluntary  Deed — Restoring  Lost  Deed, 370 

364.  Gift  in  Writing  Enforced  Between  Blood  Relations, 371 

365.  Donee  May  Maintain  an  Action  for  Possession  Under  the  Deed,     .    .    .  371 

366.  Recitation  in  Deed  of  a  Consideration, 372 

367.  A  Void  Deed  Cannot  be  Construed  as  a  Gift, 372 

368.  Parol  Trust, 373 

369.  Gift  of  Easement— Timber, 373 

370.  Gift  Mortis  Causa — Mutual  Mistake — Revocation  of  Deed  on  Recovery,  373 

Parol  Gift. 

371.  A  Parol  Giftrrf  Real  Estate  is  Void, 374 

372.  Gift  Followed  by  Improvements 374 

373.  Expenditure  of  Labor, 379 

374.  Donor  Stipulating  for  Expenditure  on  the  Land  Given, 379 

375.  A  Promise  to  Give  is  Not  Sufficient — Donor  Retaining  Control  of  the 

Property, 380 

376.  Gift  or  Contract, 382 

377.  Donor  Inducing  Donee  to  Change  His  Condition — Will — Contract,    .    .  3S3 

378.  Gift  Not  Inducing  Donee  to  Change  His  Condition  nor  to  Expend  Money 

or  Labor  Thereon, 385 

379.  Slight  or  Trivial  Improvements — Rents  a  Full  Compensation,     ....  385 

380.  Expenditures  Must  be  Made  in  Consequence  of  and  Relying  L'pon  the 

Gift, 387 

381.  Gift  After  Improvements  Made  or  Labor  Expended 387 

382.  Possession  Without  Improvements  Made  or  Labor  Expended  May  be 

SuflBcient — Free  of  Incumbrance, 388 

383.  Adverse  Possession  After  Gift  Made, 389 

384.  Confirming  Gift  by  Will, 393 

385.  Title  Acquired  by  Donor  After  Gift  Made, 394 

386.  Possession  by  the  Donee  Must  be  Clear, , 394 

387.  Gift  Incomplete  without  Posssession  taken — Intention  to  Give,  ....  395 

388.  Gift  to  Wife,  but  Possession  taken  by  Husband — Adverse  Possession,     .  395 

389.  Donor  Regaining  Possession, , 396 

390.  Donee  Abandoning  Gift, 397 

391.  Donor  Incumbering  Land 398 

392.  Donor  Reserving  Rent — Taxes  Paid  by  Donor 398 

393.  Payment  of  Taxes, 399 


xvi  Table  of  Contents. 

SECTION  PAGE 

394.  Kelationship  of  Donor  and  Donee, 399 

395.  Gift  by  a  Married  Woman — Infant, 400 

396.  Donee  Must  Show  a  Definite  Promise — Must  Show  Land  Given,     .   .    .  400 

397.  Land  Given — Boundaries, 401 

3y8.  Sufficiency  of  Evidence  to  Establish  the  Gift, 401 

399.  Donee  Must  Show  that  He  Made  Improvements  or  Expended  Labor 

Thereon, 404 

400.  Declarations  of  the  Donor  to  Prove  or  Disprove  Gift, 404 

401.  Acts  and  Conduct  of  Donor  and  Donee, 405 

402.  When  Donee  takes  Land  AVilhout  the  Incumbrance  Thereon,     ....  406 

403.  When  Donee  Acquires  a  Title  to  the  Land  Given — Judgment  Lien,  .    .  406 

404.  Eights  of  Creditors  of  Donee, 407 

405.  Kind  of  Action — Ejectment — Trespasses — Trial  by  Jury, 407 

406.  Compensation  in  Damages, 408 

407.  Donee  Entitled  to  Recover  for  Improvements, 410 

CHAPTER  XV. 

VOLUNTARY    TEUSTS. 

408.  Introduction, 411 

409.  Gift  Failing  for  Lack  of  Conveyance  is  Invalid  as  a  Declaration  of  Trust,  412 

410.  Imperfect  Gift  Cannot  be  Construed  a  Trust, 413 

411.  Not  to  be  Confounded  with  Conveyances  for  a  Valuable  Consideration,  .  413 

412.  Trust  Must  be  Completed  by  Donor, 413 

413.  Donor  Constituting  Himself  a  Trustee  for  the  Donee, 415 

414.  Sufficiency  of  Language  to  Create  a  Trust, 419 

415.  Donor  Must  Part  Absolutely  with  His  Interest  in  tlie  Property.      .    .    .  419 

416.  Donor  Must  Part  with  His  Dominion  Over  Gift — Assistance  of  a  Court 

of  Equity, 420 

417.  Mere  Intent  to  Create  a  Trust  is  Not  Sufficient, 421 

418.  Trust  iMust  be  Certain,  and  Not  Eest  in  Intention  or  Promise — Mere 

Intent, 421 

419.  Donor  Must  Have  Intended  to  Create  a  Trust, 423 

420.  Difference  Between  an  Assignment  and  a  Declaration  of  Trust,  ....  423 

421.  "Wlien  Trust  is  Completed, 424 

422.  Patrol  Declaration  Accompanied  by  Acts, 424 

423.  Donor  Eetaining  Deed  and   Failing  to  Deliver  It — Failure  to  Commu- 

nicate with  Trustee  and  Donee, 425 

424.  Donor  Unlawf  illy  Obtaining  Possession  of  Deed  of  Trust, 426 

425.  Delivery  of  Subject-Matter  of  Gift, 426 

426.  Notice  to  Donee  or  Trustee  of  Trust, 426 

427.  Donor  Divestinsr  Himself  of  the  Legal  Title, 427 

428.  Donee  Divesting  Himself  of  the  Equitable  Title, 429 

429.  Failure  to  Name  Beneficiary, 429 

430.  Deed  of  Gift  as  a  Testamentary  Instrument, 430 


Table  of  Contents,  xvii 

SECTION  PAGE 

431.  Xecessit.v  for  Instrument  of  Gift  to  be  Under  Seal, 431 

432.  Donee  Induced  to  Change  His  Situation  by  Promise  of  Donor  to  Give,  431 

433.  Orders  Addressed  by  a  Creditor   to   His  Debtor   or   Depositary  of  a 

Fund, 432 

434.  Covenant  to  Give  Upon  a  Contingency,      434 

435.  Donor  Reserving  Conirul  Over  Trust  Fund  as  Trustee, 434 

436.  Eevocation, 436 

437.  Preventing  the  Making  of  a  Gift  by  Will, 437 

438.  Good  or  Meritorious  Consideration, 439 

439.  Marriage  Settlements, 440 


CHAPTER  XVI. 

FRAUD    AND    UNDUE    INFLUENCE. 

440.  Gift  Procured  by  Fraud  or  Undue  Influence  is  Void, 441 

441.  Amount  of  Influence  Necessary  to  Avoid  Gift, 442 

442.  Unsoundness  of  Mind — Mental  Weakness, 443 

443.  Temper  and  Disposition  of  Donor, 444 

444.  Age  of  Donor — Disease, 444 

445.  Improvident  Gift  to  Stranger, 445 

446.  Unequal  Distribution  of  Property  Among  Children, 445 

447.  Value  of  Gift — Amount  of  Donor's  Remaining  Property, 445 

44S.  Donee  Preparing  Deed  of  Gift, 446 

449.  Gift  Intended  to  Operate  as  a  Will, 447 

450.  Mistake 447 

451.  Power  of  Revociition,  Failure  to  Reserve, 448 

452.  Witnesses  to  Gift, 448 

453.  Importuning  Donor — Persuasion 448 

454.  Burden  to  Show  Fraud  or  Undue  Influence, 449 

455.  Confldential  Relations, 450 

456.  Principal  and  Agent — Partners,      451 

457.  Gift  by  Client  to  his  Attorney, 453 

458.  Gift  to  Clergyman, ,  456 

459.  Physician  and  Patient, 457 

460.  Ante-Nuptial  Agreements, 458 

461.  Father  to  Son, 459 

462.  Son  to  Father, 459 

463.  Brothers  and  Sisters, 459 

464.  Gift  to  Mistress, 460 

465.  Gift  of  Inebrinte, 460 

466.  W^ard  to  Guardian — Son  to  Parent 460 

467.  Wife  to  Husliand 462 

408.  W^ho  May  Bring  Suit  to  Set  Aside  Gift, 464 


xviii  Table  of  Contents. 


CHAPTER  XVII. 

FRAUDULENT    CONVEYANCES. 

SBCnON  PAGE 

469.  Introduction, 465 

470.  EarJy  English  Statutes,      466 

471.  Statutes  Dechiratory  of  tlie  Common  L;ivv, 466 

472.  Incorporeal  Property, 467 

473.  Fraudulent  Purpose, 467 

474.  Gift  Must  Render  Donor  Unable  to  Pay  His  Then  Existing  Indebted- 

ness,     468 

475.  Subsequent  Creditors, 469 

476.  Subsequent  and  Sudden  Insolvency, 469 

477.  Gift  Made  with  Intent  to  Defraud  Subsequent  Creditors, 470 

478.  Donor  Retaining  Apparent  Ownership  of  Gift — Notice  of  Gift,      .    .    .  470 

479.  Gift  Void  as  to  Prior   Creditors,  Regardless  of  the  Amount  of  the 

Donor's  Property, 471 

480.  Void  as  to  Prior  and  Effect  on  Subsequent  Creditors, 471 

481.  Gift  Insignificant  in  Value, 472 

482.  Gift  of  Property  Exempt  from  Execution, 472 

483.  Husband  May  Give  His  Services  to  His  Wife — Father's  Emancipation 

of  His  Minor  Child, ...  472 

484.  Donatio  Mortis  Causa, 473 

485.  Fraudulent  Gift  Binding  Between  Donor  and  Donee, 473 

486.  Fraudulent  Donee  Liable  to  Donor's  Creditors,    . 474 

487.  Gift  by  a  Third  Person  to  Another's  Child, 474 

488.  Gift  by  Husband  in  Fraud  of  His  Wife  or  Children, 474 

CHAPTER  XVIII. 

GIFTS    IN    FRAUD    OF    MARITAL    RIGHTS. 

489.  Introduction — An  Early  Case, 475 

490.  General  Rule, 478 

491.  Mere  Concealment — Actual  Fraud, 481 

492.  Reasons  for  the  Rule, 482 

493.  Husband  Must  Be  Ignorant  of  the  Conveyance  Until  After  tlie  Marriage,  482 

494.  Conveyance  Before  Treaty  of  Marriage  Entered  Upon,  . 484 

495.  Intended  Wife  Dealing  with  Her  Property  Before  Her  Engagement,     .  485 

496.  Conveyance  of  Part  of  Property, 486 

497.  Wife  Fraudulently  Representing  Herself  Po'^sessed  of  Property,        .    .  486 

498.  The  Wife's  Property  Need  Not  Have  Brought  About  the  Marriage,   .    .  487 

499.  Husband  Ignorant  of  His  Intended  Wife  Owning  Property, 487 

500.  Wife  Incumbering  Her  Lands — Leases, 487 

501.  Release  of  a  Debt  or  Legacy, 4^8 

502.  Circumstances  of  the  Parties — Pecuniary  Means  of  the  Husband,  .    .    .  488 


Table  of  Contents.  xix 

SECTION  PAGE 

503.  Widow  with  Children  Conveying  Estate, 488 

504.  Consideration  for  Conveyance — Incumbrance  or  Debt, 489 

505.  Innocent  Purchaser  from  Fraudulent  Grantee, 490 

506.  Husband  Seducing  His  Intended  Wife, 490 

507.  Intended  Husband  Misrepresenting  His  Own  Property  to  His  Intended 

Wife, 491 

508.  Acquiescence  by  Husband  After  the  Marriage, 491 

509.  Delay  in  Bringing  Suit  to  Set  Aside  Conveyance, 491 

510.  Action  by  Personal  Representatives  of  Husband — Heirs, 492 

511.  Husband's  Creditors  Attacking  Conveyance, 493 

512.  Heir  of  Wife  Attacking  Husband's  Fraudulent  Conveyance, 493 

513.  The  Decree,      493 

514.  Husband  Secretly  Conveying  His  Property, 494 

515.  When  Wife  May  Sue— Right  of  Action, 495 

516.  Personal  Property  of  Husband, 496 

517.  Married  Wbiiian's  Acts, 496 

CHAPTER  XIX. 

ORIGIN    AND    ESSENTIALS    OF    ADVANCEMENTS. 

518.  Limit  of  Discu.ssion, 500 

519.  Confusion  in  the  Use  of  the  Terms  Ademption  and  Advancement,  .    .    .  501 

520.  E;irly  English  Law  of  Personal  Effects  of  Deceased  Persons, 501 

521.  English  Statute  of  Distribution, 503 

522.  Resemblance  to  Old  English  and  to  Roman  Law, 505 

523.  English  Statute  of  Distribution  Common  Law  in  America, 507 

524.  Equality  Basis  of  Statute  and  Decisions, 508 

525.  Definition  of  Advancements, 510 

526.  Differs  from  '"Advances,"'     .    .    , 511 

527.  "Advancement"  Distinguished  from  a  "Gift"  or  "Debt," 513 

528.  Distinguished  from  an  "  Ademption," 513 

529.  Difference  Between  Advancement  and  Satisfaction, 514 

530.  Revocation  of  an  Advancement, 515 

531.  Changing  Gift  to  Advancement, 516 

532.  Changing  Advancement  to  Gift, 517 

533.  Changing  Debt  to  an  Advancement, 517 

534.  Chantjing  Avancement  to  a  Debt, 517 

535.  Assent  of  Donee  to  an  Advancement, 518 

536.  Donee  Refusing  to  Accept  Advancement, 518 

537.  Intention  of  Donor  Controls, 519 

538.  Statute  Changing  Rule  as  to  Intention,      520 

539.  Relation  of  Donor  to  Donee, 522 

540.  Gift  to  Grandchildren, 522 

541.  Advancement  to  Parent  when  Grandparent  Leave  Surviving  Him  only 

Grnndoliildren, 526 

542.  Payment  to  Son-in-law  as  an  Advancement  to  Daughter, 526 


XX  Table  of  Contents. 

SECTION  PAGE 

543.  Mother's  Gift  to  Child  as  an  Advancement, 631 

544.  Gift  to  Stranger,      532 

545.  Gift  Must  be  Out  of  Donor's  Own  Property, 532 

546.  Gift  Must  be  Perfected  in  Lifetime  of  Donor — Eents  and  Profits  of  Keal 

Estate 533 

547.  Donor  Must  Die  Intestate, 534 

543.  Partial  Intestacy, 535 

549.  Will  Executed  After  Advancement  Made, 53C 

550.  To  What  Property  the  Law  of  Advancements  Applies, 538 

551.  Heir  Releasing  to  Ancestor  His  Prospective  Inteiest  in  His  Estate,   .    .  540 

552.  Purchaser  of  Heir's  Interest  Takes  Subject  to  Advancement  Made,    .    .  543 

CHAPTER  XX. 

PRESUMPTION TRUSTS. 

553.  Purchase  in  Name  of  Stranger, 545 

554.  Purchase  of  Land  by  Father  and  Conveyance  to  His  Child 547 

555.  Contract  by  Fatlier  for  Purchase  in  Child's  Name, 550 

556.  Conveyance  or  Gift  by  Father  to  Child, 550 

557.  Recital  of  Consideration  in  Deed, 652 

558.  Gift  by  Father  to  Infant  Son, 553 

559.  Gift  to  Child  Already  Provided  for, 553 

560.  Purchase  in  Name  of  Illegitimate  Son, 554 

661.  Father  Remaining  in  Possession — Receiving  Rents  and  Profits — Life 

Estate — Reversionary  Interest, 554 

562.  Purchase  by  Father  in  His  Own  and  Joint  Name  of  Child — Purchase 

in  Name  of  Child  and  Stranger, 555 

563.  Purchase  or  Gift  of  Personal  Property  for  or  to  Child 555 

564.  Gift  to  be  Advancement  must  be  by  way  of  Donee's  Portion, 556 

665.  Argument  of  Court  in  Rendering  Decision  on  Facts  Stated  in  Foregoing 

Section, 557 

566.  Same — Disposal  of  Items  in  Foregoing  Section — "Setting  up  in  Busi- 

ness,"   558 

567.  Cost  of  Education,      559 

568.  Trifling  Sums  or  Articles — Watch — Horse — Furniture 561 

669.  Contingent  Interest — Annuity, 5G2 

670.  Parent  Paying  Debt  of  Child, 563 

571.  Child  Executing  Note  to  Parent  for  Money  Advanced, 563 

572.  Receipt  for  Debt — Surrender  of  Note  or  Bond, 564 

573.  Child  Purchasing  Property  with  Parent's  Money, 566 

674.  Donor  Purchasing  Property  with  Money  Charged  as  an  Advancement,  567 

575.  Note  of  Father— Sealed  Bill 568 

576.  Purchase  or  Gift  by  Mother  for  or  to  her  Child, 568 

577.  Rule  of  Presumption  Applies  to  a  Gift  to  a  Daughter, 569 

578.  Purchase  bv  Grandfather  in  Name  of  Grandchild, 5^i9 

579.  Gift  by  Husband  to  Wife, 570 


Table  of  Contents.  xxi 


CHAPTEE  XXI. 

EVIDENCE REBUTTING    PRESUMPTION. 

SECTION  PAGE 

580.  Intention  of  Donor, 573 

581.  Contemporaneous  Declarations  and  Acts  of  Donor, 675 

582.  Contemporaneous  Declarations  and  Acts  of  Donee, 575 

583.  Prior  Declarations  of  Donor, 576 

584.  Subsequent  Declarations  of  Donor, 576 

585.  Subsequent  Declarations  Admitted  in  Certain  Forums, 577 

586.  Subsequent  Statements  of  Donor  to  Donee, 578 

587.  Rationale  of  Doctrine  Concerning  Subsequent  Declarations, 578 

588.  Contemporaneous  Acts  and  Declarations, 579 

589.  Admission  of  Donee, 580 

590.  Conduct  of  Parties  with  Reference  to  Subject-Matter  of  Gift, 580 

591.  Donor's  Declarations  Concerning  Other  Gifts  Made  by  Him, 580 

592.  Memorandum  Made  by  Donor, 581 

593.  Will  Referring  to  Account  to  Show  Advancements  Made 583 

594.  Statute  Making  Book-Eniry  Sole  Repository  of  Donor's  Intention,    .   .  585 

595.  Statute  Requiring  Advancement  to  be  in  Writing, 586 

596.  Parol  Evidence  to  Show  Consideration  of  Deed, 588 

597.  Evidence  to  Rebut  Presumption  Arising  from  Purchase  in  Name  of 

and  Conveyance  to  Child, 591 

598.  Advancement  in  Writing, 592 

599.  Will  Declaring  What  Shall  be  Deemed  an  Advancement, 593 

600.  Amount  of  Intestate's  Estate — Value  of  Gift — Surrounding  Facts,      .    .  594 

601.  Unequal  Distribution, 595 

602.  Burden — Sufficiency  of  Evidence — Question  for  Jury, 596 

CHAPTER  XXII. 

HOTCHPOT. 

603.  Doctrine  of  Hotchpot, 598 

604.  For  what  Property  Heir  Must  Account,     ....        600 

605.  Application  to  Wife  or  Widow  of  Deceased  Donor, 601 

606.  Doctrine  Applicable  to   All  Distributees, 602 

607.  Distributee  Not  Compelled  to  Bring  Advanced  Property  into  Hotchpot 

— Over-advanced — Infant,      602 

60S.  Kind  of  Property  to  be  Brought  In — Value, 604 

609.  Agreement   of    Distributee   with   Other   Distributees   to   Account   for 

Property  Advanced, 604 

610.  Refusal  to  Come  in  First  Distribution  Does  Not  Bar  Right  to  Come  in 

and  Share  Second  Distribution, 605 

611.  Estimating  Value  of  Advancement — Time  of, 605 


XXll 


Table  of  Contents, 


SECTION  PAGE 

G12.  Value  of  Imperfect  Gift  which  Ls  Perfected  at  Later  Date, 607 

C13.  Value  Fixed  by  Will, 608 

614.  Cliarging  Donee  with  Interest  on  Property  Advanced, 609 

615.  Kents  and  Profits — Increased  Value, 611 

616.  Improvements  Erected  by  Donee, 611 

617.  Property  Wasted  or  Destroyed — Slaves  Emancipated, 612 

618.  Effect  on  Title  to  Property  Advanced  by  Bringing  into  Hotclipot,  .   .    .  612 

619.  Statute  of  Limitations, 613 

620.  Not  a  Part  of  Assets  of  Estate, 613 

621.  How  Question  of  Advancement  Litigated— Partition, 614 

622.  Competency  of  Advanced  Distributee  to  be  a  Witness, 615 


APPENDIX. 

STATUTE   OF    DISTRIBUTIONS. 
An  Act  for  the  Better  Settlement  of  Intestate's  Estates, 616 


CHAPTER   I. 

DONATIO    INTER   YIYOS. 

1.  Two  Classes — Inter  Vivos  and  Mortis  sideration  to  vSupport  a  Convey- 

Cansa.  ance  of  Real  Estate. 

2.  Definition  of  Gift  Inter  Vivos.  7.  Gift  or  Sale. 

3.  Essentials  of  Valid  Gift.  8.  Gift  or  Loan. 

4.  Consideration.  9.  Gift    or    Loan — Misunderstanding. 

5.  Consideration    Disproportionate  or     10.  An  Advancement  not  a  Gift. 

Nominal.  11.  Gift  Indefinite. 

6.  Love  and  Affection  a  Sufficient  Con-     12.  Good  Only  in  Part. 

13.  Lex  Loci. 

1.  Two  Classes — Inter  Vivos  and  Mortis  Causa. 
— Gifts  are  usually  divided  iuto  two  classes :  Inter  vivos 
and  mortis  causa.  A  gift  inter  vivos  is  made  to  take  effect 
during  the  life  of  the  donor,  either  absolute  or  condi- 
tionally ;  but  a  gift  mortis  causa  is  made  during  the 
last  sickness  of  the  donor,  conditioned  upon  his  death. 
In  many  particulars  they  are  alike,  and  differ  in  but  a 
few.  Thus  a  dojiatio  mortis  ca^isa  must  have  all  the 
essentials  of  a  gift  inter  vivos;  but  the  law  attaches  to 
the  former  the  condition  that  it  must  be  executed 
during  the  donor's  last  sickness,  in  contemplation  of 
death,  and  upon  the  condition  that  he  die  from  the 
then  sickness ;  for  if  he  survives,  the  gift,  ipso  facto,  is 
revoked.^ 

2.  Definition  of  Gift  Inter  Vivos. — A  gift  inter 
vivos  is  a  voluntary  transfer  of  property  by  the  owner 
to  another,  without  any  consideration  or  compensation 
as  an  incentive  or  motive  for  the  transaction.^     Popu- 

1  Kilby  V.  Godwin,  2  Del.  Ch.  61 ;  Kiff  v.  Weaver,  94  X.  C.  274. 
''Gray  v.  Barton,  55  N.  Y.  68,  72. 


2  Gijh. 

larlv  speaking,  the  thing  given  is  called  n  gift.  Gifts 
and  ad  van  cements  are  sometimes  iiseti  interchanijeablv  as 
indicating  the  same  transaction.  Yet,  while  an  advance- 
ment is  always  a  gift,  a  gift  is  by  no  means  always  an  ad- 
vancement* A  gift  imports  a  benefit ;  and  usually  an 
acceptance  of  the  bounty  may  fiiirly  be  presumed,  until 
the  eontniry  appears.^  "  A  gift  inter  rifo^^,"  said  the  Su- 
preme Court  of  Ohio,  "  has  been  defined  as  an  immediate, 
voTuutary,  and  gratuitous  transfer  of  his  personal  property, 
bv  one  to  another."^  A  verv  lair  illustration  of  a  sfift 
is  a  bounty  paid  by  the  United  States  government  to 
those  enlisting  in  the  army  ;  *  or  a  pension.* 

o.  Essentials  of  Yalid  Gift. — AVhile  it  is  anticipat- 
ing the  discussion  of  the  subject,  it  is  as  well  to  here  state 

*  Decree's  EsJate,  3  Breirs.  314. 

*Ki3wJck  e.  Maiduiaa,  1  Bmr.  59.  "Tbe  act  of  transferring  the  right  a«d 
possK^on  of  a  persooal  chanel,  Trherehj  one  xatm  renounoes  and  another  ac- 
qnires  all  the  title  and  interest  therein :"'  Hynson  r.  Terry,  1  Ark.  ?3,  S7. 

*  Flanders  r.  Blandv,  45  Ohio  St  lOSi,  113;  Minchin  r.  Merrill,  2  Ed.  Ch.  S33  ; 
Tajlor  c-  Fire  Department,  1  Ed.  Ch.  294 ;  Conner  r.  Hull,  36  Miss.  4'24  ;  Young 
r- Young.  25  Miss,3S;  Roberts  r.  Draper,  IS  Bradw.  167;  Pajne  r.  Powell,  5 
Bash.  24S  •  LTnch  r.  Hainault,  5  Low.  Can.  Jar.  306  ;  Livingston  r.  Livingston, 
29  Xel^r.  167, 178 ;  McKenzie  r.  Harrison,  120  N,  Y.  260,  265. 

*Meais  r.  Bickford.  55  Me  52S;  Din-^ore  r.  Webber,  69  Me.  103;  Holt  r. 
Holt,  59  Me,  464.  The  word  'bonus"  used  in  36  Vict,,  ch.  4S,  sect,  372,  sub. 
sect.  5,  of  the  Ontario  statute,  construed  to  not  mean  a  trift :  Scotti>h  Amer.  In- 
Test-  Co.  r.  Elora,  6  Ontario  App,  62S.  "  Gratuitous  gift :"  Holmes  r,  Cartier,  5 
Low.  C  Kep.  296.  Other  definitions  of  a  gift  inier  riros :  Walker  r.  Crews,  73  Ala. 
412 ;  Henson  r.  Kinard,  3  Strob.  Eq.  371 ;  M'Lean  r.  Longlands,  5  Yes.  Jr.  71  ; 
Horn  r.  Gartman,  1  Fla.  66;  Irish  r.  NutUng,  47  Barb.  370 ;  Snulh  r.  Dorsey,  38 
Ind.  451. 

^Semple  r.  Unitetl  States,  24  Ct.  of  CL  422.  An  instrument  of  writing  convey- 
ing a  title  to  per*ioinal  property  in  which  the  grantor  uses  the  expressions  ''  give 
and  bequeath,"  when  followed  by  a  delivery  of  the  property,  is  a  donation  inier 
rivos:  Crawford  r.  Puokett,  14  La-  Ann.  639.  Tiie  Geneva  Award  w.-i*  not  a  gift 
in  trust  for  the  i^erisons  who  had  sutTered  loss  at  the  hands  of  the  Southern  Con- 
feidacy:  Taft  r.  Mardly,  120  X.  Y.  474;  Leonard  r.  Nye,  125  Mass.  455.  A  hus- 
band and  wife  conveyed  lands  to  their  son,  who  agreed  to  provide  for  them  while 
they  lived,  and  after  their  death  pay  a  certain  sum  to  their  daughter.  As  to  their 
daughter  this  was  held  to  be  as^Ulement  and  not  a  gift :  Henderson  r.  McDonald, 
84  ind.  149. 


DoftAillo  Inter  Vivos.  3 

the  tilings  essential  to  make  a  valid  gift.  The  donor 
mu-st  have  the  capacity  to  make  a  gift ;  ^  he  must  liave  an 
intention  to  make  it ;  ^  liLs  intention  must  be  to  make  it 
now,  and  not  in  the  future ; "'  he  must  deliver,  either 
actually  or  constructively,  the  thing  given  to  the  donee,* 
releasing  all  dominion  over  the  thing  given  and  investing 
the  donee  with  whatever  dominion  he  possessed ;  '^  there 
mUst  be  an  acceptance  by  the  donee  ;^  it  mast  be  irre- 
vocable, unless  the  consent  of  both  the  donor  and  donee 
is  first  obtained ;  ^  it  must  be  without  a  valuable  consid- 
eration, for  if  there  be  a  valuable  consideration,  however 
small,  fcfr  the  transaction,  it  Ls  a  contract  and  not  a  gift ; " 
the  thing  given  must  not  be  indefinite,'*  and  the  entire 
transaction  must  show  a  valid  gift  as  a  whole  and  not  of 
a  part.^'* 

4.  CoxsiDERATioN'. — A  Consideration  is  entirely  un- 
necessary to  uphold  a  gift.  In  fact,  if  there  be  a  con- 
sideration the  transaction  is  no  longer  a  gift,  but  a  con- 
tract. "  The  question  as  to  the  adequacy  of  the  coasideration 
cannot  influence  the  decision  of  the  case,  for  a  considera- 
tion is  only  necessary  to  support  an  agreement  or  execu- 
tory contract."  ^^  Consequently  in  all  cases  of  donation 
there  can  be  no  such  a  thing  as  failure  of  consideration.^^ 

'  See  Sec-tion  50. 

*  See  Section  70. 
'  See  Section  72. 
*See  Section  131. 
*See  Section  135. 

•  See  Section  79. 

^See  Section  105;  Mima  v.  Rose,  42  Ga.  121;  Shaw  v.  White,  28  Ala. 
637. 

'See  Section  101. 

'Sheedyv.  Roach,  124  Mass.  472. 

^  McGrath  v.  Reynolds,  116  Mass.  566. 

"  Stewart  v.  Hidden,  13  Minn.  43. 

"Gilmore  v.  Hayworth,  26  Texas,  89  ;  Fulton  v.  Fulton,  43  Barb.  581  ;  Worth 
V.  Case,  42  N.  Y.  362. 


4  Gifts. 

Thus,  it  has  been  said,  "  A  gift,  as  implied  by  its  defini- 
tion, must  be  without  consideration."  ^  Altliough  a 
consideration  is  named  in  the  deed  of  gift,  it  is  admis- 
sible to  show  that  tliere  w^as  none  intended  or  paid.^ 

5.  Consideration  Dispkopoetionate  or  Nominal. — 
The  disproportion  of  the  consideration  to  the  value  of  the 
thins:  o'iven  is  immaterial.  If  there  is  some  consideration 
w^iich  prompted  the  transaction,  it  will  render  that  which 
would  have  been  a  gift  a  contract.^  Thus  where  an 
aged  and  childless  man  agreed  with  a  father  that  if  he 
would  name  the  child  after  him  he  would  provide  for  it 
generously ;  and  afterward,  on  the  child  being  so  named, 
in  consideration  of  the  naming  of  the  child,  he  executed 
his  note  to  the  father  in  the  sum  of  ten  thousand  dollars, 
the  note  was  held  valid  ;  for  the  transaction  was  a  con- 
tract and  not  a  mere  gift,  and  the  promisor  having  received 
all  he  contracted  for,  the  court  declined  to  examine  its 
sufficiency.^  But  the  recital  of  a  mere  nominal  considera- 
tion will  not  turn  a  gift  into  a  contract  if,  from  the  con- 
text of  the  instrument,  or  from  the  acts  or  language  of  the 
j^arties,  it  appears  that  the  pecuniary  consideration  named 
was  merely  formal.  In  such  an  instance  the  transaction 
remains  a  gift.^ 

6.  Love  and  Affection  a  Sufficient  Considera- 
tion TO  Support  a  Conveyance  of  Real   Estate. — 

1  Jackson  v.  Twenty-third  St.  R.  W.  Co.,  15  J.  &  S.  (N.  Y.)  85.  "A  bond 
witliout  any  consideration  is  obligatory,  and  there  is  no  relief  in  equity  against 
such  a  bond ;  for  it  is  voluntary,  and  as  a  gift,  and  no  consideration  is  pretended. 
If  a  drunken  man  gives  his  bond,  it  binds  liira.  A  gift  of  anything  without  a 
consideration,  is  good  ;  but  it  is  revocable  before  delivery  to  the  donee  of  tlie 
tiling  given:"  Chap.  IX,  Jenkins,  108,  109. 

2  Woods  V.  Wliitney,  42  Cal.  358;  Salmon  v.  Wilson,  41  Cal.  595;  Barker  v. 
Koneman,  13  Cal.  9;  Peck  v.  Vandenberg,  30  Cal.  11. 

3  Worth  V.  Case,  42  N.  Y.  362. 

*  Wolford  V.  Powers,  85  Ind.  294. 

^Morris  v.  Ward,  36  N.  Y.  587  ;  Hatch  v.  Straight,  3  Conn.  31. 


Donatio  later  Vivos.  5 

It  has  long  been  a  settled  rule  with  the  courts  that  love 
and  affection  raises  a  sufficient  consideration  to  support  a 
conveyance  of  real  estate,  especially  if  the  donor  and 
donee  are  blood  relatives ;  and  the  insertion  of  a  nominal 
sum  for  the  consideration,  although  paid,  will  not  change 
the  transaction  from  a  gift  to  a  sale.^  It  may  always  b6 
shown  that  the  recitation  of  a  consideration  in  a  deed  is 
fcilse,  and  that  the  land  conveyed  was  a  gift  in  fact.^ 
"  It  is  an  elementary  principle,"  said  the  Supreme  Court 
of  Iowa,  "  that  the  consideration  of  blood,  or  natural  love, 
is  a  good  consideration,  and  that  an  executed  contract  or 
conveyance  made  upon  such  consideration  is  binding  be- 
tween the  parties  and  all  others,  except  subsequent  pur- 
chasers without  notice,  and  creditors."^  Yet  if  it  clearly 
appears  that  the  amount  paid,  however  small,  was  an 
actual  consideration,  and  so  regarded  by  the  grantor  and 
grantee,  then  the  deed  is  one  of  contract  and  not  of  gift, 
and  the  courts  will  so  regard  it/  But  love  and  affection, 
or  blood  relationship,  is  no  longer  regarded  as  necessary 
to  support  a  voluntary  gift  of  real  estate.  A  voluntary 
conveyance  between  a  donor  and  donee  not  related,  and 
who  are  in  fact  violent  personal  enemies,  if  intended  as  a 
gift,  is  valid.  It  is  a  gift,  and  by  insisting  that  there 
must  be  love  and  affection,  or  relationship,  or  a  considera- 
tion, the  entire  transaction  is  turned  into  a  contract ;  and 
it  is  tacitly  thereby  admitted  that  a  gift,  pure  and  simple, 

^  Morris  v.  Ward,  36  N.  Y.  587  ;  Banks  v.  Merksberry,  3  Litt.  275. 

''Pate  V.  Johnson,  15  Ark.  275,  overruling  Gullett  v.  Lamberton,  1  Eng, 
(Ark.)  109. 

^  Mercer  v.  Mercer,  29  Iowa,  557  ;  citing  Noble  v.  Smith,  2  Johns.  82 ;  Gran- 
giac  V.  Arden,  10  Johns.  293;  Pitts  v.  Mangum,  2  Bailey  L.  58S  ;  Pearson  r. 
Pearson,  7  Johns.  26  ;  Carpenter  v.  Dodge,  20  Vt.  595  ;  Moore  ;•.  Pierson,  6  Iowa, 
279.  Affirmed  in  Burgess  v.  Pollock,  53  Iowa,  273 ;  Thornton  v.  Mulquinne,  12 
Iowa,  519  ;  Pierson  v.  Armstrong,  1  Iowa,  282. 

*Fairley  v.  Fairley,  34  Miss.  18;  Fairly  v.  Fairly,  38  Miss.  280;  Morris  v. 
Ward,  36  N.  Y.  587. ' 


6  Gifts. 

of  real  estate  cannot  be  made.  At  this  period  of  enlight- 
ened jurisprudence  no  court,  or  at  least  very  few,  desire  to 
assume  this  250sition.^ 

7.  Gift  or  Sale. — It  is  sometimes  very  difficult  to  tell 
whether  the  transaction  was  a  gift  or  a  sale.  In  all  such 
instances  the  entire  transaction  must  be  examined ;  and 
if  the  evidence  shows  that  an  act  of  sale  was  intended  as 
an  act  of  donation,  and  it  is  clothed  with  all  the  formali- 
ties required  by  law  for  the  validity  of  a  gift,  effect  will 
be  given  to  it  as  a  gift,  or  vice  versa,  as  the  case  may  be.^ 
A  sale  without  a  price  is  a  donation  of  the  thing  sold.^ 
But  where  bonds  w^ere  delivered  by  one  person  to  another 
under  an  express  promise,  made  in  writing,  by  the  latter, 
to  return  them  "  whenever  called  for,"  the  promise  was 
considered  a  written  contract,  the  terms  and  conditions  of 
which  could  not  lawfully  be  varied  or  modified  by  parol 
proof,  and  such  an  undertaking  entirely  incompatible 
with  the  idea  of  an  absolute  gift.*  Yet  a  payment  of 
money  by  a  father,  as  a  surety  for  his  son  was  held  to  be 
a  gift.^  A  father  in  advanced  years,  and  in  anticipation 
of  death,  conveyed  his  farm  to  one  of  his  sons,  to  be  paid 
for  in  a  conveyance  of  a  part  to  another  son,  a  brother 
of  the  grantee,  and  a  part  by  note  and  mortgage,  and  the 
remainder  of  the  price  was  to  be  a  gift.  The  transaction 
was  held  a  sale,  the  conveyance  not  a  gift,  although  there 
was  a  gift  of  a  part  of  the  purchase-money.*'     It  is  quite 

'  Tiedman  on  Eeal.  Prop.,  sect.  801 .  "  Therefore  a  want  or  failure  of  considera- 
tion is  no  good  avoidance  of  a  deed:"  3  Wash.  Real  Prop.  (5th  ed.)  391. 

"^  Harper  v.  Pierce,  15  La.  Ann.  666  ;  Haggerty  v.  Corri,  5  La.  Ann.  433 ; 
Rhodes  v.  Rhodes,  10  La.  85  ;  In  re  Corse,  2  Fed.  Rep.  307 ;  Randall  v.  Peck- 
ham.  11  R.  I.  600;  Huiihey  v.  Eichelberger,  11  S.  C.  36;  M'Cord  v.  M'Cord,  11 
Rev.  Leg.  510 ;  S.  C.  5  Leg.  News,  342. 

3  D'Orgenoy  v.  Droz,  13  La.  382. 

*Selleck  v.  Selleck,  107  111.  389. 

^Browns  v.  Brown,  4  B.  Mon.  535. 

6 Spear?;.  Griffith,  86  111.  552. 


Donatio  Inter  Vivos.  7 

material  on  an  indictment  for  illegally  selling  intoxicating 
liquor  that  a  sale  be  proved ;  for  proof  of  a  gift  will  not 
support  it ;  and  so  if  a  gift  is  charged,  a  sale  cannot  be 
shown/  So  proof  of  a  barter  or  gift  will  not  support  the 
charge  of  a  sale.^ 

8.  Gift  or  Loan. — Like  in  the  case  of  a  gift  or  con-, 
tract,  so  in  the  case  of  a  gift  or  loan,  all  the  circumstances 
of  the  transaction  must  be  considered  to  determine  the 
respective  rights  of  the  parties  ;  and  if  what  was  at  first  a 
loan  is  changed  to  a  gift,  the  burden  lies  \\i)Oi\  the  alleged 
donee  to'show  that  the  change  was  made.^  Thus  in  South 
Carolina,  during  the  time  of  slavery,  if  a  father  on  his 
son's  marriage  delivered  to  him  a  slave,  or  permitted  the 
slave  to  go  home  with  him,  or  sent  the  slave  to  him,  it 
^^^  prima  facie  evidence  of  a  gift;  but  it  was  always  per- 
missible to  rebut  the  presumption  by  proof  of  the  cir- 
cumstances under  which  the  parent  gave  possession  to  the 
son  ;  such  a  circumstance  was  the  repossession  by  the 
parent,  and  retention  of  the  slave.^  The  relation  of  the 
parties  justified  the  presumption  of  a  gift^  Whether 
or  not  the  transaction  amounts  to  a  gift  or  loan  is  a 
question  for  the  jury  ;  and  the  court  cannot  say  to  it  that 
the  law  presumes  it  was  intended  as  a  gift  unless  there 
was  an  avowal  of  a  contrary  intention  at  the  time  of  the 

^Brannan  v.  Adams,  76  111.  331 ;  Birr  v.  People,  113  111.  045;  State  v.  Decker, 
10  W.  L  ,  Jr.  328  ;  Schaffner  v.  State,  8  Ohio  St.  642 ;  Kober  v.  State,  10  Ohio  St. 
444 ;  Ralph  v.  Link,  5  Q.  B.  (Can.)  145. 

^Stevenson  v.  State,  05  Ind.  409  ;  Massey  v.  State,  74  Ind.  368.  A  father  told 
a  minor  son  that  if  lie  would  take  one  of  his  mares  to  a  horse  and  pay  for  the 
service  the  foal  sliould  be  liis  own,  and  the  son  did  so;  it  was  held  that  the  trans- 
action was  a  contract :  LinnendoU  v.  Doe,  14  Johns.  222. 

'Selleck  v.  Selleck,  107  111.  389.  See  Steedman  v.  M'Neill,  1  Hill  L.  (S.  C.) 
194;  Booth  v.  Terrell,  18  Ga.  20. 

*  Watson  V.  Kennedy,  61  Strobh.  Eq.  1 ;  Davis  v.  Duncan,  1  M'Cord  (S.  C), 
212;  Johnson  v.  Ghost,  11  Nebr.  414;  Whitfield?;.  Whitfield, 40  Miss.  352;  Craw- 
ford V.  Mansoi),  82  Ga.  118;  Keeiie  r.  Macey,  4  Bibb.  35. 

*  Smith  V.  Montgomery,  5  T.  B.  Mon.  503. 


8  Gifts. 

delivery.  The  relationship  may  justify  the  jury  or  court 
in  iDresuming  an  intended  gift  in  such  an  instance,  but 
that  presumption  may  be  repelled  by  other  circum- 
stances.^ A  father  told  his  son  "  he  would  let  him  have 
one  of  three  negro  boys,  he  might  take  choice,"  and 
then,  after  the  selection  had  been  made,  he  "  remarked  that 
he  would  let  him  have  the  boy  he  had  selected  as  a  loan  to 
be  redelivered  when  called  for."  The  court  decided 
that  the  transaction  was  clearly  a  loan  and  not  a  gift.^ 
In  an  action  for  money  loaned,  the  defendant  and  one  M. 
testified  that  they  applied  to  the  plaintiff  for  loans  of 
money  to  purchase  certain  stock ;  that  the  plaintiff  as- 
sented, and  gave  M.  a  check  for  the  money  with  which  to 
purchase  the  stock,  including  one  hundred  shares  for  him- 
self;  that  M.  purchased  the  stock,  and  that,  a  day  or  two 
thereafter,  the  defendant,  M.  and  the  plaintiff  being  to- 
gether, and  M.  having  the  certificate  of  shares  in  his 
possession,  the  defendant  and  he  proposed  to  give  their 
note  for  the  money  advanced  to  them,  and  that  the  plain- 
tiff declined  to  receive  the  notes,  and  told  them  that  he 
made  them  a  present  of  the  stock  ;  and  that  M.  thereuj^on 
handed  to  the  defendant  one  hundred  shares,  gave  the 
plaintiff  his  one  hundred,  and  took  fifty  shares  himself. 
The  court  instructed  the  jury  that  the  mere  apjolication  of 
M.  and  the  defendant  to  the  plaintiff  to  make  the  loan, 
and  the  consent  of  the  plaintiff  to  such  a2:)plication,  did 
not  necessarily  constitute  a  loan  from  the  plaintiff  to  the 
defendant,  or  from  the  plaintiff  to  M.,  if  the  plaintiff  all 
the  time  intended  the  transaction  to  be  a  gift  and  not  a  loan. 
There  was  a  verdict  for  the  defendants ;  and  the  court 
upheld  the  verdict.^     D.,  before  he  married  the  plaintiff, 

^  Keene  v.  Macev,  4  Bibb.  35  ;  Crawford  v.  Manson,  82  Ga.  118 ;  Ide  v.  Pierce, 
134  Ma?s.  260;  Falconer  v.  Holland,  5  S.  &  M.  689  ;  Hick  v.  Keats,  4  B.  &  C.  69. 
'  Smith  V.  Jones,  8  Ark.  109.  ♦• 

8  Helm  V.  Martin,  59  Cal.  57. 


Donatio  Inter  Vivos.  9 

his  second  wife,  donated  and  gave  to  a  school  association, 
to  aid  in  establishing  it,  a  certain  sum  of  money  ;  and 
after  D.'s  death  and  the  final  settlement  of  his  estate,  the 
trustees  of  the  school  association  sold  its  property  and  out 
of  the  proceeds  paid  the  amount  he  had  given  them  to  the 
defendant,  as  the  only  child  and  heir  of  D.  by  a  former 
marriage.  D.  had  no  children  by  his  second  wife,  and 
the  claim  was  made  by  this  second  wife  that  this  money 
w^as  part  of  the  assets  of  the  estate ;  but  the  court  held 
that  it  was  not,  that  the  gift  by  D.  to  the  school  was  an 
absolute  gift,  and  the  payment  of  the  money  by  the  as- 
sociation to  his  son  was  entirely  voluntary,  and  conse- 
quently the  amount  so  paid  formed  no  part  of  the  assets 
of  the  estate.^  So  where  A  placed  his  son-in-law  in  jios- 
session  of  a  slave,  at  the  same  time  declaring  it  to  be  a 
loan  ;  and  the  slave  remained  in  the  possession  of  B  for 
more  than  five  years,  it  was  held  that  it  did  not  amount 
to  a  gift,  and  that  the  statute  of  limitations  did  not  apply 
to  the  transaction.^  So  where  a  husband  received  from 
his  wife  certain  bonds,  it  was  held  that  whetlier  or  not 
the  transaction  was  a  gift  w^as  a  question  of  fact  for  the 
trial  court,  and  its  decision  was  not  reviewable  on  appeal.^ 

9.  Gift  oe  Loan — Misunderstanding. — Suppose,  how- 
ever, that  A  give  money  to  B  as  a  gift,  but  B  takes  it  as 
a  loan,  does  B  become  A's  debtor  for  the  amount,  or  is  the 
ownership  of  the  money  transferred  to  B  ?  We  quote 
the  language  of  a  distinguished  English  judge  on  this 

^Day  V.  Day,  100  Ind.  460. 

"^  Moseby  v.  Williams,  5  How.  (Miss.)  520. 

^H;iskell  V.  Hervey,  74  Me.  192.  The  term  "  lend  "  when  used  in  a  will  is 
generally  equivalent  to  "give:"  Booth  v.  Terrell,  16  Ga.  20;  Hinson  v.  Pickett, 
1  Hill  Ch.  (S.  C.)  35  ;  Bryan  v.  Duncan,  11  Ga.  67. 

A  loan  of  money  sent  by  a  brother  to  a  sister,  in  accordance  with  her  request,  is 
not  changed  from  a  loan  to  a  gift  by  permission  to  retain  it  as  long  as  she  might 
want  it.  At  the  furthest  it  would  be  due  at  her  death:  Rivina's  Ap.,  37  Leg. 
Int.  466. 


10  Gifts. 

point :  "  But  then,  in  my  opinion,"  said  he,  "  in  order  to 
make  out  a  gift,  it  must  not  only  be  shown  that  the 
cheque  was  sent  as  a  gift,  but  that  it  was  received  as  a 
gift.  It  requires  the  assent  of  both  minds  to  make  a  gift 
as  it  does  to  make  a  contract.  No  doubt  you  may  infer 
that  a  person  has  assented  to  that  which  is  obviously  for 
his  benefit  on  slighter  evidence  than  would  be  required  to 
show  he  assented  to  a  contract  wdiich  may  be  to  his  pre- 
judice ;  but  still  it  is  by  no  means  uncommon,  particularly 
in  the  case  of  money  transactions  between  relations,  that 
the  party  intended  to  be  benefited  may  prefer  to  receive 
as  a  loan  what  has  been  offered  as  a  gift.  Surely  it  is  not 
an  extraordinary  thing  that  a  man  should  offer  to  make 
a  present  to  his  friend  and  that  the  friend  should  say,  in 
answer,  '  I  am  much  obliged  to  you  for  the  money,  and  it 
is  of  the  greatest  j)ossible  use  to  me ;  but  I  cannot  take  it 
as  a  gift,  I  can  only  take  it  as  a  loan.'  If  the  person  who 
had  advanced  the  money  acquiesced  in  this,  the  ultimate 
agreement  would  be  for  a  loan,  and  the  transaction  would 
be  one  of  loan,  and  not  of  gift,  although  I  quite  agree 
that  the  person  who  sent  the  money  might  in  his  turn, 
say  :  '  I  do  not  choose  to  have  it  taken  as  a  loan ;  you 
must  take  it  as  a  gift  or  not  at  all.'  In  that  case,  if  the 
person  to  whom  the  money  was  sent  did  not  return  it,  but 
kept  it,  of  course  it  would  be  a  gift."  ^  But  this  does  not 
exactly  answer  the  question.  A  may  have  intended  a 
gift,  and  B  thought  it  was  a  loan.  In  that  event  both 
are  in  error ;  but  it  seems  to  be  conceded  that  the  owner- 
ship of  the  property  passes  to  B.^  So  it  has  been  said 
that  "  if  A  sends  a  case  of  w^ine  to  B,  intending  to  sell  it, 
but  fails  to  communicate  his  intention,  and  B   honestly 

1  Hill  V.  Wilson,  L.  R.  8  Ch.  App.  888  ;  S.  C  42  L.  J.  Ch.  817 ;  29  L.  J.  238  ; 
21  W.  R.  757. 

*  Wald's  Pollock  on  Contracts,  419  (2d.  Am.  ed.). 


Donatio  Inter  Vivos.  11 

believing  it  to  be  a  gift,  consumes  it,  there  is  no  ground 
for  holding  B  to  be  responsible  for  the  price  either  in 
law  or  equity,  if  he  be  blameless  for  the  mistake."  ^ 

10.  An  Advancement  not  a  Gift. — An  advancement 
cannot  be  taken  as  a  gift ;  nor  can  it  be  insisted  that  an 
actual  gift  is  an  advancement.  Thus  in  England  if  a 
father  gives  his  son  a  sum  of  money  to  pay  the  latter's 
debts,  it  is  an  "advancement  by  portion,"  within  the 
meaning  of  the  statute  on  the  subject  of  advancements. 
"  Whenever  a  sum  is  paid  for  a  particular  j)urpose,"  said 
Vice  Chancellor  Wood,  "  which  is  thought  good  and  right 
by  the  father,  and  which  the  son  himself  desires,  if  it  be 
money  which  is  drawn  out  in  considerable  amount,  and 
not  a  small  sum,  it  must  be  treated  as  an  advance.  The 
payment  of  the  money  is  the  important  thing — the  court 
does  not  look  to  the  application.  As  to  the  debts,  supj)ose 
the  young  man  had  represented  to  his  father  that  it  was 
extremely  important  they  should  be  paid,  in  order  that 
he  might  keep  his  position  in  the  army,  and  the  father 
had  j^aid  those  sums  in  order  to  assist  him,  it  would  have 
been  clearly  an  advance."  ^ 

11.  Gift  Indefinite. — It  is  one  of  the  essentials  of  a 
valid  gift  that  the  thing  given  shall  be  definitely  desig- 
nated ;  for  if  the  thing  given  cannot  be  accurately  ascer- 
tained, the  gift  will  fail.^ 

1  Benjamin  on  Sales,  p.  373  ;  Kegina  v.  Middleton,  2  L.  E.  C.  C.  38,  56  ;  S.  C. 
42  L.  J.  M.  C.  73;  28  L.  T.  777 ;  12  Cox,  C.  C.  260,  417. 

"^  Boyd  V.  Boyd,  L.  R.  4  Eq.  305  ;  Edwards  v.  Freeman,  2  P.  Wms.  435  ;  Block- 
ley  V.  Blockley,  L.  R.  29  Ch.  250;  S.  C.  54  L.  J,  Ch.  Div.  722  ;  33  W.  R.  777,  dis- 
approving of  opinion  of  Jessel,  M.  E.,  in  Taylor  v.  Taylor,  L.  R.  20  Eq.  155. 
See  Milnes  v.  Sherwin,  33  W.  R.  927;  Turner  v.  Turner,  53  L.  T.  379; 
Evans  v.  Maxwell,  50  L.  T.  51  ;  Holliday  v.  Wingfield,  59  Geo.  206  ;  Wal- 
lace V.  Owen,  71  Ga.  544  ;  Bay  v.  Cook,  31  111.  336. 

^Sheedy  v.  Roach,  124  Mass.  472 ;  Holeman  r.  Hart,  3  Strobh.  Eq.  66. 


12  Gifts. 

12.  Good  Only  in  Part. — If  a  gift  is  only  good  in 
part,  the  whole  gift  must  fail,  if  the  intention  of  the  donor 
is  only  to  make  the  gift  as  a  whole.^  But  if  there  be 
several  articles  intended  to  be  given,  part  of  which  are 
not  effectually  given,  yet  the  gift  will  be  valid  as  to  those 
given,  unless  it  appears  that  the  donor  would  never  have 
given  such  part  without  the  part  fairly  had  also  been 
given. 

13.  Lex  Loci. — The  lex  loci  always  governs  the 
validity  of  a  gift ;  thus  it  was  held  that  a  gift  of  slaves 
made  in  Maryland  between  parties  there  residing,  was  to 
be  controlled  by  the  law  of  that  State  when  the  gift  w^as 
drawn  in  question  in  Kentucky.^  So  if  a  gift  is  com- 
pleted in  one  State  by  a  resident  of  another  State,  its 
validity  w^ill  be  tested  by  the  law  of  the  State  where  it 
was  completed — the  place  of  delivery.^  So  where  a  gift 
was  completed  in  Tennessee,  between  parties  temporarily 
there,  on  their  return  to  Texas,  the  gift  was  adjudged  ac- 
cording to  the  law  of  the  former  State.*  The  validity  of 
a  gift  must  be  determined  by  the  law  of  the  place  where 
it  was  made,  without  reference  to  the  domicile  of  the 
donor.^ 

iMcGrath  v.  Reynolds,  116  Mass.  566, 

^See  Section  215;  Tarlton  v.  Briscoe,  4  Bibb.  73  ;  Adams  v.  Hayes,  2  Ired.  L. 
3G1  ;  Davis  v.  Boyd,  6  Jones  L.  249 ;  Edrington  v.  Maytield,  5  Tex.  363 ;  Gamble 
V.  Dabney,  20  Tex.  69. 

3  Weatherby  v.  Covington,  3  Strobh.  L.  27  ;  Tillman  v.  Moseley,  14  La.  Ann  710 ; 
Claiborne  w.  Tanner,  18  Tex.  68;  O'Briens.  Hilburn,  22  Tex.  616;  Faulk  v. 
Faulk,  23  Tex.  653 ;  Maiben  v.  Bobe,  6  Fla.  381 ;  McCraw  v.  Edwards,  6  Ired.  Eq. 
202  ;  Burt  v.  Kimbell,  5  Port.  (Ala.)  137  ;  McCullough  v.  Walker,  20  Ala.  389. 

*  Parks  V.  Wiilard,  1  Tex.  350;  Henderson  v.  Adams,  35  Ala.  723;  Howard  v. 
Copley,  10  La.  Ann.  504;  HoUomon  v.  Hollomon,  12  La.  Ann.  607;  Crawford  v. 
Puckett,  14  La.  Ann.  639 ;  McCraw  v.  Edwards,  6  Ired.  Eq.  202. 

5  Emery  v.  Clough,  63  N.  H.  552. 


CHAPTER  II. 


DONATIO    MORTIS  CAUSA. 


14, 
15. 

16. 
17. 
18. 
19. 
20. 
21. 


23. 
24. 
25. 
26. 

27. 

28. 

29. 
30. 
31. 
32. 
33. 


The  Earliest  English  Case. 

How  Such  Gifts  Are  Regarded  by 

the  Courts. 
Bracton's  Definition  and  Classes. 
Justinian's  Definition. 
Swinburne's  Definition. 
Definitions. 

Resemblance  to  a  Legacy. 
Difierence    Between    a    Gift    Inter 

Vivos  and  Mortis  Causa. 
Donatio  Mortis  Causa  Not  Affected 

by  Wills'  Act. 
When  Can  be  Made — Last  Sickness. 
In  Peril  of  Death. 
In  Extremis. 

Existing  Disorder — Burden  of  Proof. 
The  Threatened  Danger  to  His  Life 

the  Criterion — Belief  of  Donor. 
Gift  in  Case  of  Death  When  Not  in 

Apprehension  of  It. 
Surgical  Operation. 
Going  on  a  Journey. 
Suicide. 

Gift  by  Reason  of  Old  Age. 
A  Soldier's  Gift. 


34. 

35. 
36. 
37. 
38. 
39. 

40. 


41. 

42. 

43. 
44. 

45. 
46. 

47. 


48. 
49. 


Length  of  Time  Intervening  Be- 
tween Gift  and  Deatli. 

Gift  by  Deed  or  in  Writing. 

Donatio  Mortis  Causa  in  Trust. 

A  Conditional  Gift  Implied. 

Conditional  Donatio  Mortis  Causa. 

Gift  Inter  Vivos  During  Last 
Sickness. 

Will  Insufficiently  Executed,  Can- 
not be  Deemed  a  Donatio  Mortis 
Causa. 

Gift  of  Entire  Estate  Cannot  be 
Made  Mortis  Causa. 

Effect  of  a  Recovery  from  Illness. 

Donee  Dying  Before  Donor. 

Revocation  During  Lifetime  by 
Donor. 

Revocation  by  Will. 

When  Title  to  Thing  Given 
Passes. 

Administrator  or  Executor  Has 
no  Control  Over  Property  Given 
— Proof  in  Probate  Court. 

Contribution  With  Legatee. 

Subject  to  Donor's  Debts. 


14.  The  Earliest  English  Case. — The  earliest  Eng- 
lish case  on  the  subject  of  donatio  mortis  causa,  is  Jones 
V.  Selby/  decided  in  1710.  Critically  examined,  how- 
ever, the  case  does  not  seem  to  have  been  a  case  of  donatio 
mortis  causa,  but  the  court  in  which  it  was  pending  and 
all  courts  since  then  so  regard  it.  That  was  a  case  where 
the  alleged  donor  by  will  gave  the  donee  £500,  and 
several   months  afterward  gave  her  a  trunk,  and  called 

1  Finch's  Precedents,  300 ;  S.  C.  2  Eq.  Abr.  573,  case  2  ;  Gibb.  Ch.  342. 

13 


14  Gifts. 

liis  two  servants  as  witnesses  to  the  gift  of  the  trunk.  At 
the  time  of  the  gift  he  does  not  seem  to  have  been  sick, 
nor  in  peril  of  death  ;  for  he  several  times  afterward  called 
his  servants'  attention  to  the  fact  of  the  gift,  asked  them 
if  they  remembered  it,  and  once  took  a  candle  and  went 
and  showed  them  where  the  trunk  was  placed.  Three 
years  after  this  he  made  a  second  will,  and  gave  the  donee 
£1,000,  but  took  no  notice  therein  of  the  gift  of  the 
trunk,  or  anything  in  it.  At  his  death  the  donee  opened 
the  trunk  and  found  in  it  articles  of  considerable  value, 
and  a  government  "  tally  "  for  £500.  The  court  held 
that  there  was  not  sufficient  evidence  to  prove  that 
the  tally  was  in  the  trunk  at  the  time  of  the  gift,  and  also 
that  the  £1,000  given  by  the  second  will  was  a  satisfac- 
tion of  the  £500  given  by  the  first  will  and  the  £500 
tally.  This  is  all  there  is  in  the  case,  and  all  loose 
language  used  with  reference  to  a  donatio  mortis  causa 
has  no  necessary  connection  wdth  the  case,  although  the 
court  seems  to  have  regarded  the  transaction  as  a  gift 
causa  mortis.  Speaking  of  this  case,  the  Supreme  Court 
of  Connecticut  said,  "  That  the  commencement  of  the  case 
upon  this  head  seems  to  have  been  the  effect  of  that  part 
of  the  English  statute  of  frauds,  which  relates  to  nun- 
cupative wills,  and  a  struggle  to  support,  in  courts  of 
equity,  claims,  which  but  for  that  statute,  would  have  been 
brought  forward  in  spiritual  courts.  The  law  in  relation 
to  those  donations,  has,  however,  been  introduced  into, 
and  made  a  part  of  the  common  law ;  and  so  far  as  it  has 
been  recognized,  is  to  be  enforced."  ^  The  second  case  on 
this  subject  was  Drury  v.  Smith  ^  (1717),  and  the  third 
Lawson  v.  Lawson  (1718)  ;  ^  where  a  gift  of  a  purse  of 

1  Raymond  v.  Sellick,  10  Conn.  480,  485. 

2 1  P.  Wra.  404  ;  S.  C.  2  Eq.  Cas.  Abr.  575,  pi.  3. 

3  1  P.  Wm.  441 ;  S.  C.  2  Eq.  Cas.  Abr.  575,  pi.  4. 


Donatio  llortis  Causa.  15 

one  hundred  guineas  by  a  husband  to  his  wife,  was  hekl 
to  be  a  good  causa  mortis}  This  is  the  first  case  of  a 
genuine  donatio  7nortis  causa  reported,^  The  third  case 
is  Miller  v.  Miller^  (1735),  gift  of  two  notes  payable  to 
bearer.  The  fourth  is  Snellgrave  v.  Bailey*  (1744),  in 
which  it  was  held  that  a  gift  of  a  bond,  as  a  donatio  mortis 
causa,  was  valid.  Finally  the  law  was  settled  in  Ward 
V.  Turner,^  and  in  Tate  v.  Hilbert.''  In  Ward  v.  Turner 
Lord  Hardwicke  clearly  showed  that  these  kind  of  gifts 
had  their  origin  in  the  civil  law,  citing  numerous  authori- 
ties to  prove  his  assertions ;  and  in  Tate  v.  Hilbert,  Lord 
Loughborugh  happily  supplements  this  decision  of  Lord 
Hardwicke.^ 

15.  How  Such  Gifts  are  Regaeded  by  the  Courts. 
— ^The  early  cases  manifest  a  decided  hostility  to  these 
kind  of  gifts.  Thus,  in  the  earliest  case  the  chancellor 
said  :  "  That  these  sort  of  donations,  especially  where 
they  were  of  the  same  kind  with  what  was  given  by  the 
will,  ought  to  be  fully  proved  in  all  circumstances ; 
otherwise  they  were  not  to  be  countenanced,  because 
it  would  open  a  way  to  perjury  and  fraud  greater  than 
the  statutes  already  in  force  had  provided  against,"  and 

^  A  gift  of  an  order  or  bill  drawn  on  his  goldsmith  was  also  held,  in  this  case, 
a  good  gift. 

^  In  Drury  v.  Smith,  the  case  of  Smith  v.  Casen,  an  unreported  case  of  the  date 
of  December  8, 1718,  is  referred  to. 

3  3  P.  Wms.  356. 

*3  Atk.  214. 

5  2  Ves.  Sr.  431. 

«2  Ves.  Jr.  HI ;  S.  C.  4  Bro.  C.  C.  286  (1793). 

'  The  case  of  Hedges  v.  Hedges,  Finch's  Ch.  269 ;  S.  C.  Gibb.  Eq.  12,  13  ;  2  Eq. 
Gas.  Abr.  263 ;  2  Vernon,  615 ;  7  Vin.  Abr.  138,  215,  cannot  be  regarded  as  a  case 
of  donatio  mortis  causa.  In  Ward  v.  Turner,  supra,  Lord  Hardwicke  refers  to 
Ousley  ?'.  Carrol,  an  unreported  case,  of  June,  1722,  decided  in  the  Prerogative 
Court,  but  it  only  incidentally  touched  the  question,  and  the  same  is  true  of  Shar- 
gold  V.  Shargold,  there  cited  by  him  (a  deed  of  gift  by  the  poet  Pope).  For 
custom  of  London,  see  Tomkyns  v.  Ladbroke,  2  Ves.  Sr.  591. 


16  Gifts. 

"  that  he  set  there  to  condemn  frauds,  and  therefore  might 
2)resume  them,  unless  they  proved  the  contrary."  ^  Some- 
what in  the  same  line  the  Suj^reme  Court  of  Connecticut, 
after  citing  this  case,  expressed  itself  by  saying  :  "  But 
gifts  in  any  form  are  justly  not  in  favor  with  the  law,  be- 
ing necessarily  vague,  and  so  much  open  to  fraud  ;  and, 
therefore,  new  j^rinciples  are  not  to  be  adopted  to  sustain 
them."  ^  But  these  are  expressions  taken  from  the  older 
cases;  and  they  are  in  harmony  with  few  of  the  modern 
cases.  Speaking  of  the  right  to  make  such  gifts,  it  was 
said  that  it  was  "  excejDtional,  and  although  we  cannot  sa}'' 
that  courts  bear  against  gifts  causa  morti,  yet  the  evidence 
to  establish  them  should  be  clear  and  unequivocal,  and 
will  be  closely  scrutinized."^  The  Supreme  Court  of 
Michigan,  in  speaking  of  this  kind  of  a  gift,  said  :  "  It  was 
urged  strongly  on  the  argument,  that  the  law  treats  such 
transactions  with  disfavor,  and  that  they  are  contrary  to 
public  policy,  and  not  to  be  sustained  where  it  can  be 
avoided.  There  is  no  doubt  some  such  language  in  the 
books.  But  it  is  only  used  in  the  sense  that  such  acts  are 
scrutinized  carefully  to  ascertain  whether  freely  and  in- 
telligently done.  There  is  no  middle  class  between 
lawful  and  unlawful  acts.  And  it  is  the  duty  of  courts  to 
enforce  all  lawful  rights,  so  as  to  carry  out  the  intention 
of  the  parties.  That  intention  should  always  be  observed 
if  lawfully  expressed,*  and  it  is  only  incumbent  on  legal 
tribunals  to  be  very  careful  to  ascertain  the  facts.  There 
is  much  room  for  frauds  and  mistakes  in  cases  of  this 
kind,  and  therefore  care  should  be  used  to  sift  the  evi- 

^  Jones  V.  Selby,  supra. 

"^  Raymond  v.  Sellick,  10  Conn.  480,  485  ;  Parcher  v.  Saco,  etc.,  Savings  Inst., 
78  Me.  470;  Champney  v.  Blanchard,  39  N.  Y.  Ill ;  Bedell  v.  Carll,  33  N.  Y. 
581  ;  Hebb  v.  Hebb,  5  Gill  (Md.),  506. 

3  Trenholm  v.  Morgan,  28  S.  C  268,  278. 

*  See  Section  72. 


Donatio  Mortis  Causa.  17 

dence.  But  where  there  is  no  doubt  about  the  facts,  it 
would  be  a  legal  wrong  and  gross  injustice  to  refuse  to  act 
upon  them  fairly  and  without  hesitation."  ^ 

16.  Bracton's  Defixitiox  axd  Classes. — Bracton, 
one  of  the  earliest  writers  on  the  English  law,  has  de- 
scribed a  donatio  mortis  causa  at  considerable  length. 
"  There  are  amongst  other  donations,"  says  he,  "  a  dona- 
tion in  view  of  death,  one  when  a  person  is  not  crushed 
by  any  fear  of  a  present  danger  of  death,  but  gives  solely 
from  the  contemplation  of  mortality  ;  another  when  a 
person,  moved  by  the  imminent  danger  of  death,  gives 
in  such  terms  that  the  thing  forthwith  becomes  [the  prop- 
erty] of  the  acceptor.  A  third,  as  [for  instance]  if  a  per- 
son moved  by  danger  does  not  give  in  such  terms,  that 
the  things  forthwith  becomes  the  acceptors,  but  only 
then,  when  death  has  followed.  And  a  donation  in  view 
of  death  may  be  manifold,  as  [for  instance]  if  a  j^erson  in 
contemplation  or  suspicion  of  death,  gives  to  a  certain 
person,  which  kind  of  donations  are  frequently  made  by 
sick  persons,  or  by  those  who  are  going  into  battle,  or  are 
about  to  sail  by  sea,^  or  one  about  to  travel  abroad,  and 
have  in  themselves  a  tacit  condition,  that  such  kinds  of 
donations  may  be  revoked,  if  the  sick  man  recovers,^  if 
the  soldier  returns  safe  from  action,  if  the  sailor  returns 
from  his  voyage  and  the  traveler  from  his  journey.  And 
donations  which  are  thus  made  from  suspicion  of  death, 
are  confirmed  by  the  death  of  the  debtor,  and  they  are 
made  [on  this  understanding],  that  if  any  thing  happens 

^  Ellis  V.  Secor,  31  Mich.  185,  188 ;  S.  C.  18  Am.  R.  178 ;  Dresser  v.  Dresser,  46 
Me.  48  ;  Kurtz  v.  Smither,  1  Dem.  N.  Y.  399. 

*  It  is  curious  to  note  how  perilous  a  sea  voyage  was  regarded  in  Bracton's 
time ;  for  here  it  is  almost  classed  with  the  fatality  of  death  ;  and  so  we  may  note 
with  regard  to  traveling  ''  abroad." 

'  It  is  hardly  necessary  to  say  that  at  the  present  day  this  is  the  only  kind  of 
donatio  mortis  causa. 
2 


18  Gifts. 

humanly  to  the  testator,  he,  to  whom  the  legacy  is  made, 
shall  have  the  legacy,  but  if  the  testator  recovers,  he  shall 
retain  or  regain  the  legacy,^  or  if  he  to  whom  the  legacy 
is  given,  dies  first.  And  if  two  joersons,  who  have  made 
mutual  donations  to  each  other  in  view  of  death,  die  at 
the  same  time,  the  heir  of  neither  shall  claim,  because 
neither  has  survived  the  other.  And  such  a  donation  is 
in  reality  [a  donation]  in  view  of  death,  when  a  testator 
wishes  himself  to  jDOSsess  the  legacy,  rather  than  the 
legatee,  and  the  legatee  [to  possess  it]  rather  than  his 
heir.  But  if  it  were  so  given  in  view  of  death,  that  it 
could  not  in  any  case  be  revoked,  the  object  in  giving  is 
more  than  a  giving  in  view  of  death,  and  ought  to  be 
accounted  of  the  same  effect  as  any  other  donation  be- 
tween the  living,  and  therefore  as  between  husband  and 
wife  it  is  not  valid.^  It  is  allowable  to  make  a  donation 
in  view  of  death,  not  only  on  account  of  infirm  health, 
but  on  account  of  danger,  and  aj^proaching  death  from 
an  enemy  or  from  robbers,  or  on  account  of  the  cruelty 
or  hatred  of  a  powerful  man,  or  on  account  of  an  immi- 
nent voyage  by  sea  or  journey  by  land,  or  if  a  person  is 
likely  to  i3ass  through  a  place  beset  with  snares,  for  all 
tilings  show  urgent  danger."  ^ 

17.  Justinian's  Definition. — The  definition  of  Jus- 
tinian is  one  often  cited  in  the  earlier  cases,  and  it  is  as 
well  to  give  it  here.  "  A  donation  mortis  causa,^^  says  he, 
"  is  that  which  is  made  to  meet  the  case  of  death,  as  when 
anything  is  given  uj)on  condition  that,  if  any  fatal  acci- 
dent befalls  the  donor,  the  person  to  whom  it  is  given 

^  It  is  hardly  necessary  to  state  that  a  will  is  not  here  referred  to  nor  under 
consideration. 

^  We  have  so  far  left  the  barbarian  behind  us  that  a  husband  may  now  make 
a  valid  gift  to  his  wife. 

^  BractoD  I,  chap.  26,  p.  475.     (Sir  Travers  Twiss'  edition  and  translation.) 


Donatio  Mortis  Causa.  19 

shall  have  it  as  his  own  ;  but  if  the  donor  should  survive, 
or  if  he  should  repent  of  having  made  the  gift,  or  if  the 
person  to  whom  it  has  been  given  should  die  before  the 
donor,  then  the  donor  shall  receive  back  the  thing  given. 
These  donations  mortis  causa  are  now  placed,  in  all  respects, 
on  the  footings  of  legacies.  It  was  much  doubted  by  the 
jurists  whether  they  ought  to  be  considered  as  a  gift  or  as 
a  legacy,  partaking  as  they  did  in  some  respects  of  the 
nature  of  both  ;  and  some  were  of  opinion  that  they  be- 
longed to  the  one  head,  and  others  that  they  belonged  to 
the  other.  AVe  have  decided  by  a  constitution  that  they 
shall  be  in  almost  every  respect  reckoned  amongst  leg- 
acies, and  shall  be  made  in  accordance  with  the  forms  our 
constitution  provides.  In  short,  it  is  a  donation  mortis 
causa,  when  the  donor  wishes  that  the  thing  given  should 
belong  to  himself  rather  than  to  the  person  to  whom  he 
gives  it,  and  to  that  person  rather  than  to  his  own 
iieir."  ^ 

18.  Swinbttrne's  Definition. — A  definition  frequently 
cited  by  the  old  cases  is  that  of  Swinburne,  who  wrote  his 
work  on  Wills  shortly  before  1590.  "  A  gift  in  considera- 
tion of  death  is,"  says  he,   (1)  "  Where  a  man  moved  with 

^  Sandar's  Institutes  of  Justinian,  p.  147.  Justinian  cites  Telemachus'  gift  to 
PirEeus,  which  is  as  follows  (we  use  Bryant's  translation  of  the  Odyssey) :  "And 
then  discreet  Telemachus  replied  :  '  We  know  not  yet,  Piraeus,  what  may  be  the 
event ;  and  if  the  suitors  privily  should  slay  me  in  the  palace,  and  divide  the  in- 
heritance among  them,  I  prefer  that  thou,  instead  of  them,  shouldst  have  the 
gifts;  but  should  they  meet  the  fate  which  I  have  planned,  and  be  cut  oiT,  then 
shalt  thou  gladly  bring  the  treasures,  which  I  gladly  will  receive'  "  Book  XVII, 
1.  93-100.  See  Staniland  v.  Willott,  3  MacN.  &  G.  664,  and  Dexheimer  v.  Gau- 
tier,  34  How.  Pr.  472.  "Tlie  phrase  dono  dare  was  appropriated  in  Roman  law  to 
the  mode  of  transferring  property  by  gift ;  r/are  signifying  that  the  vhole  prop- 
erty in  the  thing  was  passed  by  delivery,  and  dono  expressing  the  motive  from 
which  the  delivery  was  made:''  Hammond's  .lustinian,  p.  147.  See  quotation 
from  the  Digest  in  Hambrooke  v.  Simmons,  4  Russ.  Ch.  25.  See,  also,  Ward  v. 
Turner,  2  Ves.  Sr.  431 ;  and  Tate  v.  Gilbert,  2  Ves.  Jr.  Ill ;  S.  C.  Bro.  Ch.  286. 
In  Holt  N.  P.  357  the  civil  law  distinction  between  the  two  kinds  of  gift  is 
succinctly  pointed  out. 


20  Gifts. 

the  consideration  of  his  mortality,  doth  give  and  deliver 
something  to  another,  to  be  his,  in  case  the  giver  die  ; 
otherwise  if  he  live,  he  to  have  it  again.  Of  (2)  gifts  in 
case  of  death  there  be  three  sorts :  One,  where  the  giver, 
not  terrified  with  fear  of  any  present  peril,  but  moved 
with  a  general  consideration  of  man's  mortality,  giveth 
anything.  Another,  when  the  giver  being  moved  with 
imminent  danger,  doth  so  give  that  straightways  it  is 
made  his  to  whom  it  is  given.  The  third  is,  when  any 
being  in  peril  of  death,  doth  give  something,  but  not  so 
that  it  shall  presently  be  his  that  received  it,  but  in  case 
the  giver  do  die.  This  (3)  last  kind  of  gift  is  that  which 
is  compared  to  a  legacy.  But  the  other  two  are  reputed 
simple  gifts,  if  the  giver  do  not  make  express  mention  of 
his  death  ;  and  so  they  cannot  be  revoked,  but  take  full 
effect  from  the  time  of  making  of  the  gift,  if  the  same  be 
not  fraudulent."  ^ 

19.  Deftj^itions. — But  these  definitions  of  donatio 
mortis  causa,  taken  from  the  civil  law,  have  not  been 
accepted  in  their  full  length  and  breadth,  "  They  are  un- 
doubtedly taken  from  the  civil  law, "  said  Lord  Hard- 
wicke,  "  but  not  to  be  allowed  of  here  further  than  the 
civil  law  on  that  head  has  been  received  and  allowed ;" 
and  the  chancellor  then  proceeds  at  considerable  length, 
in  what  is  regarded  as  the  leading  English  case.^  "A  do- 
natio mortis  causa"  says  a  writer  on  wills,^  "  or,  as  it  has 

^  Swinburne  on  Wills,  22.  Upon  this  classification  Mr.  Koper  says,  "  It  ap- 
pears that  the  third  alone  is  the  proper  donation  mortis  causa,  the  other  two 
being  nothing  more  than  pure  gifts  inter  vivos.  This  is  also  apparent  from  the 
definition  of  a  donation  mortis  causa  given  by  Justinian  after  the  contest  whicli 
prevailed  upon  the  subject  had  subsided  :"  Koper  on  Legacies,  p.  2.  See  Bunn  v. 
Markham,  Holt,  N.  P.  352,  note  ;  Tate  v.  Gilbert,  2  Ves.  Jr.  Ill  ;  S.  C.  4  Bro. 
Ch.  286;  Ward  v.  Turner,  2  Ves.  Sr.  431. 

^  Ward  V.  Turner,  2  Ves.  Sr.  431.  See,  also,  Tate  v.  GUbert,  2  Ves.  Jr.  Ill ;  S. 
C.  4  Bro.  Ch.  2S6. 

3  Flood  on  Wills,  2. 


Donatio  Mortis  Causa.  21 

been  styled,  an  improper  kind  of  legacy,  may  be  gener- 
ally defined,  or  rather  perhaps  described,  as  a  duly  wit- 
nessed ^  gift,  either  direct  or  in  trust,'^  of  something,  the 
property  in  "which  can,  and  does  actually,  pass  by  mere 
delivery,^  made  by  a  person  in  his  last  illness,  or  appre- 
hensive of  approaching  death,^  but  to  take  effect  only  on 
that  event  happening  ^  at  or  about  the  time  anticipated, 
or  within  a  reasonable  time  afterward,^  and  provided 
there  be  no  revocation  of  the  gift  by  the  donor's  recovery 
and  his  subsequent  resumption  thereof."  ^  "  To  con- 
stitute a  donatio  mortis  causa,^^  said  the  Supreme  Court 
of  New  Hampshire,  "there  must  be  three  attributes:  (1) 
the  gift  must  be  with  a  view  of  the  donor's  death ;  (2)  it 
must  be  subject  to  the  condition  that  it  shall  take  effect 
only  on  the  donor's  death  by  his  existing  illness,  and  (3) 
there  must  be  a  delivery  of  the  subject  of  the  donation."  ^ 

^Citing  Tate  v.  Hilbert,  2  Ves.  Sr.  Ill;  W' alters  v.  Hodge,  2  Swanst.  97; 
Thompson  v.  Heffernan,  4  D.  &  War.  (Ir.)  285  ;  Cosnaiian  v.  Grice,  15  Moo.  1*. 
C.  215 ;  Hayslep  v.  Gymer,  1  A.  &  E.  162 ;  S.  C.  3  N.  &  M.  479. 

"^  Citing  Blount  r.  Burrow,  4  Brown,  C.  C.  72  ;  Hills  v.  Hills,  8  M.  &  W.  401 ; 
S.  C.  5  Jur.  1185. 

*  Citing  Miller  v.  Miller,  3  P.  Wms.  356  ;  Ward  v.  Turner,  2  Yes.  Sr.  441  ; 
Bunn  V.  Markham,  7  'J'aunt.  224 ;  Trimmer  v.  Danby,  23  L.  J.  Ch.  979. 

*  Citing  Just.  Inst.  2,  7,  1 ;  2  Black  Com.  514  ;  Gardner  v.  Parker,  3  Madd.  102  ; 
Duffield  V.  Elwes,  1  Bligh  N.  S.  497,  530. 

*  Citing  Tate  v.  Hilbert,  2  Ves.  Jr.  Ill;  S.  C.  4  Bro.  C.  C.  286;  Edwards  v. 
Jones,  1  Myl.  &  Cr.  226  ;  S.  C.  5  L.  J.  Ch.  194  ;  Staniland  v.  Willott,  3  Mac.  & 
Gor.  664. 

^Citing  Veal  r.  Veal,  27  Beav.  303  ;  S.  C.  29  L.  J.Ch.  321,  where  three  months 
elapsed  between  the  date  of  the  gift  and  death. 

''Citing  Ward  v.  Turner,  supra;  Bunn  r.  Markham,  7  Taunt.  224.  See  Brown 
I'.  Brown,  18  Conn.  410,  415. 

8  Keniston  v.  Sceva,  54  N.  H.  24  37.  See  Prince  v.  Hazleton,  20  Johns.  502, 514  ; 
Bedell  v.  Carll,  33  N.  Y.  581  ;  Wells  v.  Tucker,  3  Binn.  (Pa.)  366,  370;  French  v. 
Eaymond,  39  Vt.  623 ;  Miller  v.  Jeffress,  4  Gratt.  472 ;  Dexheimer  v.  Gautier,  34 
How.  Pr.  472. 

The  following  cases  contain  definitions  of  gifts  mortis  causa,  more  or  less  accurate 
according  to  tlie  phase  of  the  subject  pending  before  the  couit  at  the  time  :  Hen- 
schel  V.  Manerer,  69  Wis.  576.  A  gift  causa  morlu  is  that  of  a  "chattel  made  by  a 
person  in  his  last  illness,  or  in  periculo  mortis,  subject  to  the  implied  condition 


22  Gifts. 

20.  Resemblance  to  a  Legacy. — A  donatio  causa 
mortis  is  frequently  compared  to  a  legacy  ;  and  in  some 
respects  they  are  similar.  A  legacy  usually  can  only  be 
given  by  a  written  will,  duly  signed  by  the  donor,  and 
attested  in  accordance  with  the  statute  of  wills ;  until  the 
testator  has  died,  the  title,  and  usually  the  possession,  re- 
main in  him.  But  in  a  gift  causa  mortis  a  written  instru- 
ment is  not  necessary,  it  may  be  and  usually  is  made  by 
parol,  and  the  possession  of  the  thing  given  must  be  abso- 
lutely delivered  to  the  donee  before  the  death  of  the 
donor  and  of  the  donee.  A  legacy  is  always  given  in 
view  of  the  possible  death  of  the  donor  and  so  must  a  gift 
causa  mortis  be  given  ;  but  in  the  former  instance  the  donor 
need,  and  usually  is,  not  sick  nor  in  present  j^eril  of  death, 
while  in  the  case  of  the  latter  it  must  be  given  in  antici- 
pation of  a  speedy  death  from  a  present  sickness  or  im- 
pending peril.  But  the  nearest  resemblance  is  the  am- 
bulatory character  of  both  of  them  ;  for  a  legacy  does 
not  become  vested  in  the  donee  until  the  donor  die,  and 
it  may  be  revoked  at  any  time  before  his  death,  and  in 
this  latter  particular  it  corresponds  with  a  gift  causa 
mortis.  The  most  characteristic  mark  of  distinction  be- 
tween a  legacy  and  such  a  gift  is  the  change  of  j^ossession. 
*'  From  the  nature  of  the  donatio,  it  is  apparent  that  the 

that  if  tlie  donor  recover,  or  if  the  donee  die  first,  the  gift  shall  be  void  :"  Mich- 
ener  v.  Dale,  23  Pa.  St.  59;  Taylor  v.  Henry,  48  Md.  550;  Conser  ?•.  Snowden,  54 
Md.  175;  Hebb  v.  Hebb,  5  Gill  (Md.),  500-  Willerain  v.  Dunn,  93  111.  511  ;  Kid- 
den  V.  Thrall,  125  N.  Y.  572  ;  Kiff  r.  Weaver,  94  N.  C.  274  ;  Cross  v.  Cross,  L.  E. 
1  Ch.  (Ir.)  Div.  389  ;  Drew  v.  Hagerty,  81  Me.  231 ;  Dresser  v.  Dresser,  46  Me. 
48 ;  Earle  v.  Botsford,  23  N.  B.  407  ;  Smith  v.  Dorsey,  38  Ind.  451  ;  Irish  v. 
Nutting,  47  Barb.  370;  Vandor  v.  Eoach,  73  Cal.  614  ;  Kilby  w.  Godwin,  2  Del. 
Cli.  61  ;  Eoberts  v.  Draper,  18  Bradw.  167  ;  Trenholm  v.  Morgan,  28  S.  C.  268; 
Dickescliied  v.  Exchange  Bank,  28  W.  Va.  340;  Snell's  Eq.  158;  1  Watson  Eq. 
Comp.  136;  Williard's  Eq.  Jur.  554;  Toller  Ex.  233;  Pom.  Eq.  Jur,  §  1146. 
A  conveyance  accompanied  by  an  agreement  that  the  grantee  will  support  the 
grantor  for  his  life  takes  effect  at  once,  and  is  not  a  donatio  causa  mortis  :  W^ille- 
min  V.  Dunn,  93  111.  511. 


Donatio  Jlortis  Causa.  23 

infallible  test  which  must  distinguish  it  from  a  testament- 
ary gift,  is  delivery,  a  change  of  dominion  in  jjrcesenti. 
Without  this  there  is  really  nothing  to  distinguish  it 
from  an  ordinary  testamentary  bequest."^  In  the  case 
of  a  legacy,  the  legatee  recovers  or  receives  it  from 
the  executor  or  administrator  of  the  donor ;  but  in  the 
case  of  a  donatio  mortis  causa,  neither  the  executor  nor 
administrator  has  anything  to  do  with  it.  "  A  donatio 
mortis  causa  is  claimed  against  the  executor,  wherever 
a  legacy  is  claimed  from  him."^  Both  are  taken  subject 
to  the  donor's  debt.^ 

21.  Difference  Between-  a  Gift  Inter  Vivos  and 

Mortis  Causa. — In  all  resj^ects  gifts  inter  vivos  and 
mortis  causa  are  alike  with  these  important  exceptions : 
That  a  gift  mortis  causa  must  be  made,  as  has  been 
said,  by  a  person  in  his  last  illness,  on  apj^rehension  of 
approaching  death,  conditioned  to  take  effect  only  on 
this  event  happening  at  or  about  the  time  anticipated, 
or  within  a  reasonable  time  afterward,  with  the  pro- 
viso that  there  be  no  revocation  of  the  gift  by  the 
donor's  recovery,  or  by  his  actual  resumption  thereof. 
These  exceptions  are  peculiar  to  gifts  mortis  causa  and 
form  no  part  of  gifts  inter  vivos.  The  resemblance  be- 
tween them  is  :  That  the  donor  must  have  the  capacity  of 
mind  to  make  such  a  gift,  the  donee  capacity  to  receive  or 
accept  it ;  that  there  shall  be  no  undue  influence  exercised 
by  the  donee  over  the  donor ;  that  something  must  be 
given ;  and  that  there  must  be  an  actual  or  construct- 

iTi-enholm  v.  Morgan,  28  S.  C.  268,  278  ;  Edwards  v.  Jones,  1  Mylne  &  Craig, 
226  ;  Brvson  v.  Browrigg,  9  Ves.  Jr.  1  ;  Drew  v.  Hagerty,  81  Me.  231  ;  Jones  v. 
Brown,  34  N.  H.  439  ;  Gano  v.  Fisk,  43  Ohio  St.  462  ;  Ashton  v.  Clerk,  Sel.  Ch. 
Gas.  14;  Enaery  v.  Clough,  63  N.  11.  552;  Harris  i).  Clerk,  2  Barb.  94;  affirmed, 
3  N.  Y.  93. 

2  Flood  on  Wills,  21 ;  Emery  v.  Clough,  63  N.  H.  552. 

3  Bloomer  v.  Bloomer,  2  Bradf.  339. 


24  Gifts. 

ive  delivery  of  the  article  of  gift  by  the  donor  to  the 
donee  in  their  joint  lives.  It  should  be  borne  in  mind 
that  a  donor  on  his  death-bed,  fully  aware  of  the  near 
approach  of  his  dissolution,  may  make  an  absolute  gift 
or  a  gift  inter  vivos,  the  fact  of  his  near  death  not 
vitiating  it.^ 

22.  Donatio  Mortis  Causa  Not  Affected  by  the 
Wills'  Act. — The  English  act  of  Parliament  concern- 
ing wills  did  not  abolish  the  right  of  a  dying  man  to 
make  a  donatio  mortis  causa,  nor  in  any  way  affect  such 
rights ;  ^  nor  does  the  act  of  Parliament,  imposing  a  duty 
or  tax  on  legacies — generally  known  as  the  "legacy 
duty" — affect  such  gifts,  for  they  are  free  from  its  pro- 
visions.^ In  this  country  the  same  rule  prevails  with 
regard  to  the  wills'  act  as  prevails  in  England.* 

23.  When  Can  Be  Made — Last  Sickness. — Justinian 
defined  a  donatio  mortis  causa  as  "  that  which  is  made  to 
meet  the  case  of  death,  as  when  anything  is  given  upon 
condition  that,  if  any  fatal  accident  befalls  the  donor,  the 
person  to  whom  it  is  given  shall  have  it  as  his  own."^ 
This  is  broader  than  the  English  definition ;  and,  as  we 

1  Edwards  v.  Jones,  1  Mylne  &  Craig,  226  ;  Emery  v.  Clough.  63  N.  H.  552 ; 
Diiffield  V.  Elwes,  1  Bligh,  497;  S.  C.  1  Dow.  &  CI.  1,  reversing  1  Sim.  &  Stu. 
239  ;  Kaiche  v.  Alie,  1  Rev.  Leg.  77  ;  Dichescliied  v.  Exchange  Bank,  28  W.  Va. 
340 ;  Newton  v.  Snyder,  44  Ark.  42. 

2  Moore  v.  Darton,  4  De  Gex.  &  Sm.  517  ;  S.  C.  20  L.  J.  Ch.  626;  Meach  v. 
Meach,  24  Vt.  591,  596. 

^  Farquharson  v.  Cave,  2  Colly.  356,  366. 

*  Dole  V.  Lincoln,  31  Me.  422.  See  Section  41.  {All  property  given,  not  valid.) 
Where  a  father  attempted  to  make  a  donatio  mortis  causa,  but  only  succeeded  in 
making  a  bailment  of  the  subject-matter  of  the  gift,  and  at  the  same  time  he  gave 
instructions  as  to  the  settlement  of  his  landed  estate,  in  which  he  directed  a  por- 
tion of  tlie  gift  to  be  used  and  made  provision  for  the  payment  of  his  debts,  the 
entire  transaction  was  held  to  be  in  contravention  of  the  wills'  act:  McCord  v. 
McCord,  77  Mo.  166. 

^  Sandar's  Justinian,  p.  147. 


Donatio  Mortis  Causa.  25 

liave  seen,  Bracton  ^  lays  down  several  instances  in  wliicli 
such  gifts  are  valid,  which  are  now  held  invalid.  "  It  is 
of  the  essence  of  a  donatio  mortis  caiisa,''^  said  Sir  Lan- 
celot Shadwell,  vice-chancellor,  "  that  the  gift  shall  be 
proved  to  have  been  made  in  contemplation  of  the  donor 
shortly  terminating  life  by  reason  of  extreme  sickness  or 
extreme  old  age."'^  Whether  the  last  condition  would 
now  make  the  gift  valid  may  well  be  doubted.^  In  an- 
other English  case  it  is  said  that  "  the  person  who  gives 
must  express  or  declare  himself  in  such  manner  as  that  it 
may  appear  that  he  does  it  in  view  and  contemplation  of 
his  death,  which  he  expects  to  follow  some  time  after."  * 
This  definition,  however,  is  from  an  old  case  and  is  incom- 
plete. If  it  means  that  he  shall  verbally  declare  himself, 
or  in  writing,  then  it  is  too  restricted ;  for  any  signs  that 
convey  to  the  donee,  or  to  some  one  for  him,  the  design 
or  intention  of  the  owner  is  sufficient.  That  part  of  the 
definition  that  the  donor  makes  it  "  in  view  and  contem- 
plation of  his  death  "  is  accurate,  but  the  clause  "  which 
he  expects  to  follow  some  time  after  "  is  capable  of  a  too 
extended  meaning.  It  is  too  indefinite,  for  all  men  expect 
death  to  follow  the  making  of  a  gift.  "  The  gift  must  be 
made  in  contemplation  of  the  near  approach  of  death  by 
the  donor,"  said  the  Supreme  Court  of  California.^ 
Blackstone  defines  it  to  be  a  gift  made  by  "  a  person  in 
his  last  sickness,  apprehending  his  dissolution  near."  ^ 
Williams,  in  his  work  on  Executors,  says :  "  If  a  gift  be 
not  made  by  a  donor  in  peril  of  death — i.  e.,  with  relation 
to  his  decease  by  illness  affecting  him  at  the  time  of  his 

*  See  Section  16. 

2  Edward  v.  Jones,  7  Simm.  325,  335. 

^See  Section  24. 

*Partlirick  v.  Friend,  2  Colly.  363. 

s  Daniel  v.  Smith,  64  Cal.  346 ;  Daniel  v.  Smith,  75  Cal.  548. 

6  2  Bl.  Com.  514. 


26  Gifts. 


"  1 


gift — it  cannot  be  supported  as  a  donation  mortis  causa. 
This  is  quite  an  accurate  statement  of  the  law.  In  a 
modern  English  case  it  was  said :  "  It  appears  that  the 
donor  at  the  time  was  in  bed,  having  an  illness  from  which 
he  never  recovered.  It  is  not  necessary  that  the  donor 
should  have  in  contemplation  his  immediate  dissolution, 
but  only  the  gift  should  be  made  upon  the  suppo- 
sition that  he  will  not  recover.  In  this  case  it  was,  in 
fact,  his  last  illness,  and,  so  far,  the  facts  are  sufficient  to 
satisfy  the  rule."  ^  In  an  American  case  it  is  said  that 
"  the  gift  must  be  conditional,  only  to  take  effect  by  the 
death  of  the  donor  by  his  existing  disorder ;  "  ^  and  in 
another  American  case  it  is  said  that  "  there  must  be  a 
transfer  or  delivery  of  property  in  expectation  of  death 
from  an  existing  illness,  the  donation  depending  on  the 
condition  of  death  from  such  illness."  *  In  still  another 
case,  after  reviewing  the  authorities  at  length,  and  jooint- 
ing  out  a  modification  of  the  rule,  it  was  said :  "  The 
modification  of  this  rule,  as  I  have  suggested,  relates 
mainly  to  the  manner  of  the  apjiroach  of  death,  and  I 
think  there  will  no  case  be  found  where  such  a  gift  is  up- 
held, in  which  there  was  not  either  peril  of  death  from 
some  cause  imminent  and  impending,  or  the  conceived 
near  approach  of  natural  death.  It  is  not  indeed  nec- 
essary that  the  party  should  be  in  extremis,  according  to 
some  of  the  earlier  cases,  but  the  gift  will  be  presumed  to 
be  in  contemplation  of  death,  when  the  donor  is  on  his 
death-bed,  or  languishing  in  what  proves  to  be  his  last  ill- 
ness." ^  In  a  North  Carolina  case  it  was  said  of  a  gift 
claimed  to  be  a  donatio  mortis  causa,  "  Indeed,  it  is  not 

^Williams'  Executors,  845  (6th  Am.  ed.). 

2  Meredith  v.  Watson,  23  E.  L.  &  Eq.  250 ;  S.  C.  2  Eq.  Kep,  5. 

3  Ilebl)  V.  Hebb,  5  Gill  (Md.),  506. 
*  Smith  V.  Dorsey,  38  Ind.,  p.  457. 

^  Irish  V.  Nutting,  47  Barb.  370,  386, 


Donatio  Mortis  Causa.  27 

easy  to  conceive  how  a  donatio  mortis  causa  could  be  es- 
tablished by  any  proof  in  a  case  like  this,  where  the  tes- 
tator was  not  surprised  by  sickness,  but  lived  for  months 
afterward,  and  had  abundant  opportunity  to  make  his 
testamentary  disjiositions  in  the  regular  and  ordinary 
way."  ^  These  quotations  are  amply  sufficient  to  show 
that  the  donor  must  be  laboring  under  an  apprehension 
of  pending  death  from  a  disease  or  sickness  then  afflicting 
him — a  sickness  which  is  his  last  illness,  in  order  to  make 
a  gift  mortis  causa  valid.^ 

24.  "  In  Peril  of  Death." — It  is  often  said  that  a  gift 
made  "  in  peril  of  death  "  is  a  valid  donatio  mortis  causa  ; 
but  just  what  is  meant  by  this  phrase  does  not  clearly  ap- 
pear. It  does  not  mean  in  extremis,  for  that  is  not  essen- 
tial to  the  validity  of  a  gift  of  this  kind.  SupjDOse,  how- 
ever, a  man  is  under  a  sentence  of  condemnation,  to  be 
executed  by  hanging,  shooting,  or  in  any  other  effectual 

1  Shirley  v.  Wliitehead,  1  Ired.  Eq.  130. 

^Robson  V.  Jones,  3  Del.  Ch.  51.  Where  the  donor  was  eighty  years  of  age 
and  quite  ill,  but  did  not  die  until  five  months  afterward,  the  gift  was  upheld, 
there  being  a  continual  sickness :  Grymes  v.  Hone,  49  N.  Y.  17.  So  where 
the  donor  did  not  die  for  six  weeks:  Williams  v.  Guile,  117  N.  Y.  343,  affirming 
46  Hun,  645  ;  Conser  v.  Snowden,  54  Md.  175 ;  Taylor  v.  Henry,  48  Md.  550  ; 
Hebb  V.  Hebb,  5  Gill  (Md.),  506;  Sessions  v.  Moseley,  4  Cush.  87;  First  Nat. 
Bank  v.  Balcom,  35  Conn.  351  ;  Raymond  v.  Sellick,  10  Conn.  480 ;  Henschel  v. 
Mauer,  09  Wis.  576  ;  S.  C.  2  Amer.  St.  Rep.  757  ;  Kiff  v.  Weaver,  94  N.  C.  274 ; 
Nicholas  v.  Adams,  2  Whar.  (Pa.)  17  ;  reversing  1  Miles,  90  ;  Overton  v.  Sawyer, 
7  Jones  (N.  C.),  L.  0  ;  Rhodes  v.  Childs,  64  Pa.  St.  18  ;  Gourley  v.  Linsenbigler,  51 
Pa.  St.  345 ;  McCarven's  Estate,  7  W.  N.  C.  261  ;  Kenistons  v.  Sceva,  54  N.  H. 
24;  Huntington  v.  Gilmore,  14  Barb.  243  ;  Harris  r.  Clark,  2  Barb.  94;  S.  C. 
3  N.  Y.  93 ;  Van  Slooten  v.  Wheeler,  21  N.  Y.  Snpp.  336 ;  Worth  v.  Case,  42  N. 
Y.  362  ;  Champney  v.  Blanchard,  39  N.  Y.  Ill  ;  Merchant  v.  Merchant,  2  Bradf. 
432 ;  Dole  v.  Lincoln,  31  Me.  422 ;  Weston  v.  Hight,  17  Me.  287  ;  Thomjison  v. 
Thompson,  12  Tex.  327;  French  v.  Raymond,  39  Vt.  623  ;  Holley  v.  Adams,  16 
Vt.  206 ;  Smith  v.  Kittridge,  21  Vt.  238  ;  Sheegog  v.  Perkins,  4  Baxt.  273  ;  Gass 
?;.  Simpson,  4  Coldw.  288  ;  Gratton  v.  Appleton,  3  Story,  755  ;  S.  C.  8  L.  Rep.  116  ; 
Lee  V.  Luther,  3  Wood  &  M.  519 ;  Miller  v.  Miller,  3  P.  Wms.  357  ;  Tate  r.  Hil- 
bert,  2  Ves.  Jr.  Ill ;  Jones  v.  Selby,  Finch  Cli.  300;  Hedges  v.  Hedges,  Finch, 
269 ;  S.  C.  Gill  12 ;  2  Vern.  615;  Blount  r.  Burrow,  1  Ves.  Jr.  456  ;  S.  C.  4  Bro.  C. 
C.  71 ;  Cosnahan  v.  Grice,  7  L.  J.  N.  S.  81 ;  15  Moo.  P.  C.  215. 


28  Gifts. 

manner,  and  the  day  or  time  for  his  execution  is  set ;  or 
suppose  he  is  in  the  hands  of  a  body  of  lynchers,  may  he 
not  make  a  gift  inortis  causa  f  It  may  be  that  he  has 
hope  of  a  pardon,  or  of  a  new  trial  or  of  a  rescue  ;  but  that 
is  no  more  reason  why  the  gift  should  be  void  than  if  he 
had  a  hope,  in  the  case  of  sickness,  that  he  would  re- 
cover ;  for  few  men  die  who  are  not  possessed  with  a  hope 
of  surviving  their  sickness  up  to  the  moment  of  the  final 
struggle.  There  is  no  reason  why  such  a  gift  is  not 
valid/  Yet  "  a  general  apprehension  of  death  from  the 
mortality  of  men  will  not  be  sufficient,  but  it  must  be  an 
apprehension  arising  from  the  peculiar  sickness,  or  peril, 
or  danger."  ^  The  threatened  danger  to  his  life  must  be 
the  moving  cause  of  his  making  the  gift.^ 

25.  "  In  Extremis." — The  old  authorities  seem  to  in- 
cline toward  the  proposition  that  a  man  must  be  in  ex- 
tremis to  make  a  gift  mortis  causa  valid ;  and  while  some 
of  the  modern  cases  *  considers  that  such  a  rule  would  be 
preferable,  they  admit  that  such  is  not  the  modern  rule.^ 
*'  It  is  not  needful,"  said  Earl,  J.,  "  that  the  gift  be  made 
in  extremis  when  there  is  no  time  or  opportunity  to  make 
a  will.  In  many  of  the  reported  cases  the  gift  was  made 
weeks,  and  even  months,  before  the  death  of  the  donor 
when  there  was  abundant  time  and  opportunitv  for  him 
to  have  made  a  will."  ^ 

26.  Existing  Disorder — Burdex  of  Proof. — "As 
we  have  already  said  it  was  essential,  to  make  the  attempted 

^See  for  a  discussion  of  the  phrase  ''in  peril  of  death,"  Robson  v.  Robson,  3 
Del.  Ch.  51 ;  Craig  v.  Kittredge,  46  N.  H.  57. 

''Sheegog  v.  Perkins,  4  Baxt.  273 ;  Gass  v.  Simpson,  4Coldw.  288. 
3  Gass  V.  Simp.-on,  4  Coldw.  288,  298. 

*  Robson  V.  Robson,  3  Del.  Ch.  51. 

*  Robson  V.  Robson,  3  Del.  51 ;  Gourley  r.  Linsenbigler,  51  Pa.  St.  345  ;  Rliodes 
V.  Chikls,  64  Pa.  St.  18  ;  Williams  r.  Guile,  117  N.  Y.  343,  affirming  46  Hun,  645. 

6  Ridden  v.  Thrall,  125  N.  Y.,  p.  579. 


Donatio  Mortis  Causa.  29 

gift  an  eflfective  gift  mortis  causa,  that  the  donor  should 
die  of  the  very  disorder  with  which  she  was  suffer- 
ing when  the  gift  was  made,  and  that  there  should  have 
been  no  intervening  recovery."  Consequently  it  was  held 
not  to  be  enough  to  show  that  the  gift  was  made  when  the 
donor  was  sick,  and  that  she  died  some  three  months 
afterward.  The  court  said  that  it  devolved  upon  the 
donee  to  show  that  there  was  no  intervening  recovery, 
and  that  the  donor  died  from  the  very  disease  with  which 
she  was  seized  when  she  made  the  gift.^  It  must  be  also 
shown  by  the  donee  that  the  donor  made  the  gift  "  with  a 
view  to  and  in  expectation  of  death  from  the  existing  dis- 
order.^ But  these  statements  have  been  severely  shaken 
by  a  recent  decision.  In  the  case  under  consideration  a 
sufferer  from  disease  was  about  to  undergo  a  severe  surgi- 
cal operation,  but  it  was  not  doubtful  if  he  would  survive. 
In  view  of  this  fact  he  made  a  gift.  The  oj^eration  was 
performed  and  he  died,  but  his  death  was  occasioned  by 
heart  disease,  and  it  did  not  appear  that  the  fatal  disease  had 
any  connection  with  the  operation.  "  Counsel  for  the 
appellant,"  said  Earl,  J.,  "would  add  one  more  prerequi- 
site to  an  effectual  gift,  and  that  is  that  the  donor,  when 
the  gift  has  been  made  in  the  apprehension  of  death 
from  disease  must  have  died  of  the  same  disease,  and  he 
calls  our  attention  to  exj^ressions  of  judges  to  that  effect. 
I  have  examined  all  the  cases  to  which  he  refers,  and 
many  more,  and  find  that  these  expressions  were  all  made 
in  cases  where  the  donor  died  from  the  same  disease  from 
which  he  apprehended  death  when  he  made  the  gift,  and 
that  none  of  them  were  needful  to  the  decisions  made. 

1  Conser  v.  Snowden,  54  Md.  175  ;  Hebb  v.  Hebb,  5  Gill  (Md.),  506  ;  Blount  v. 
Burrow,  1  Ves.  Jr.  546 ;  S.  C  4  Be  v.  C.  C.  71. 

2  Taylor  v.  Henry,  48  Md.,  p.  559;  Thompson  v.  Thompson,  12  Tex.  327; 
French  v.  Raymond,  39  Vt.  623.  See  Grymes  v.  Hone,  49  N.  E.  17,  and  Williams 
V.  Guile,  117  N.  Y.  343,  affirming  46  Hun,  645. 


30  Gifts. 

The  doctrine  meant  to  be  laid  down  was  that  the  donor 
must  not  recover  from  the  disease  from  which  he  appre- 
hended death.  I  am  quite  sure  that  no  case  can  be  found 
in  which  it  was  decided  that  death  must  ensue  from  the 
same  disease,  and  not  from  some  other  disease  existing  at 
the  same  time,  but  not  known.  There  is  no  reason  for  this 
additional  prerequisite.  The  rule  is  that  the  donor  must  not 
recover  from  the  disease  from  which  he  then  apprehended 
death.  If  he  recovers  the  gift  is  void  ;  if  he  does  not  re- 
cover, and  the  gift  is  not  revoked,  it  becomes  effectual. 
In  this  case  the  condition  was  that  if  he  did  not  recover 
from  the  consequence  of  the  operation  and  return  from 
the  hospital  the  gift  should  take  effect.  That  was  a  per- 
fectly lawful  condition  for  him  as  the  owner  of  the  prop- 
erty to  impose,  and  no  reason  can  be  perceived  for  refusing 
to  uphold  a  gift  made  under  such  circumstances.  A 
donor  may  have  several  diseases,  and  may,  in  making  a 
gift,  apprehend  death  from  one  and  not  from  the  others, 
and  shall  the  gift  be  invalid  if  before  he  recovers  from 
the  disease  feared,  he  dies  from  one  of  the  other  diseases  ? 
In  such  a  case  it  might  be,  and  generally  would  be,  diffi- 
cult, if  not  impossible,  to  tell  what  share  any  of  the  dis- 
eases had  in  causing  the  death.  No  medical  skill  could 
ordinarily  tell  that  the  donor  would  have  succumbed  to 
the  disease  feared  if  the  other  disease  had  not  been  pres- 
ent. Here  the  immediate  cause  of  death  appeared  to  be 
heart  disease,  and  the  autopsy  did  not  disclose  that  there 
was  any  connection  between  the  hernia  or  the  operation 
and  the  heart  disease.  But  who  could  tell  that  the  death 
^vould  have  ensued  from  the  heart  disease  at  that  particu- 
lar time  but  for  the  operation  ?  No  medical  skill  can  tell 
that  the  shock  from  the  operation,  and  the  debility  and 
disturbance  caused  thereby  did  not  hasten  death  ;  and 
the  death,  therefore,  in  a  proper  sense,  may  have  ensued, 


Donatio  Mortis  Causa.  31 

and  probably  did  ensue  from  both  causes.  Sound  policy 
requires  the  laws  regulating  gifts  causa  mortis  should  not 
be  extended,  and  that  the  range  of  such  gifts  should  not 
be  enlarged.  AVe,  therefore,  confine  our  decision  to  the 
precise  facts  of  this  case,  and  we  go  no  further  than  to 
hold  that  when  a  gift  is  made  in  the  apprehension  of  death 
from  some  disease  from  which  the  donor  did  not  recover, 
and  the  apparent  immediate  cause  of  death  was  some  other 
disease  with  which  he  was  afflicted  at  the  same  time,  the 
gift  becomes  effectual."  ^ 

27.  The  Threatened  Danger  to  His  Life  the  Cri- 
terion— Belief  of  Donor. — There  is  no  doubt  that  the 
donor  must  consider  his  life  in  immediate  or  almost  im- 
mediate, danger.  He  must  be,  at  the  time  of  the  gift, 
under  the  belief  that  he  is  in  peril  of  death,  or  surrounded 
by  threatened  dangers  from  which  he  has  an  immediate 
existing  apprehension  of  death ;  and  in  contemplation  of 
death  from  sickness,  peril  or  danger,  he  is  thereby  moved 
to  make  the  donation.^  A  groundless  apprehension  of 
death  is  as  effectual  to  make  a  gift  conditional  as  if  the 
danger  was  real.  "  No  one,"  said  Gibson,  C.  J.,  "  would 
hesitate  to  say  that  the  gift  of  a  man  in  the  predicament 
of  Parolles,  when  s^^ortively  doomed  by  his  friends,  in 
the  guise  of  ferocious  enemies,  might  be  recalled."  ^ 

28.  Gift  "  in  Case  of  Death  "  When  Not  in  Ap- 
prehension OF  it. — A  gift  inortis  causa,  made  while  the 
donor  is  in  full  health,  or  while  suffering  from  a  disease 
that  in  reasonable  expectation  will  not  produce  death  in 
the  near  future,  is  invalid.     Thus  a  deposit  made  in  a 

J  Ridden  v.  Thrall,  125  N.  Y.  572 ;  S.  C  21  An.  St.  758 ;  26  K  E.  Eep.  627. 

2  Gass  V.  Simpson,  4  Coldw.  288,  298  ;  Parthrick  x.  Friend,  2  Colly,  363,  note. 

'Nicholas  v.  Adams,  2  Whart.  (Pa.)  17.  Donor  must  be  very  near  death  in 
his  belief :  Keyl  v.  Westerhaus,  42  Mo.  App.  49.  See  Nelson  v.  Sudiek,  40  Mo. 
App.  341. 


32  Gifts. 

bank,  while  the  donor  was  in  full  or  medium  health, 
"  payable  also  to  A,  in  case  of  the  death  of "  the  donor, 
was  held  to  be  an  invalid  gift.^ 

29.  Surgical  Operation. — A  donor  about  to  undergo 
a  very  severe  surgical  oj)eration  may  make  a  valid  gift 
mortis  causa,  although  he  have  expectations  of  surviving 
the  operation ;  and  it  matters  not  that  several  days  inter- 
vene between  the  operation  and  death,  and  then  he  die  of 
another  disease." 

30.  GoiXG  ON  A  Journey. — Expressions  are  used  in 
the  old  authorities  that  if  a  man  is  going  on  a  journey  or 
voyage  ^  to  a  distant  land,  he  may  make  a  valid  gift ;  * 
but  it  is  safe  to  say  that  such  is  not  the  law  now,  and  it 
has  been  so  expressly  decided.  Thus,  where  one  was 
about  to  take  a  journey  from  Illinois  to  Massachusetts, 
handed  a  sum  of  money  to  another  with  the  request  that 
in  case  he  never  returned  from  his  journey,  the  holder 
should  give  it  to  a  designated  charitable  institution  ;  and 
he  returned  safely,  but  died  without  making  any  further 
valid  disposition  of  the  money,  it  was  held  that  the  foots 
constituted  neither  a  gift  inter  vivos  nor  causa  mortis.^ 

31.  Suicide. — A  gift  causa  mortis  made  in  contempla- 
tion of  suicide  is  not  valid,  for  the  donor's  life  is  not  in 
peril  when  the  gift  is  made.*' 

^  Parcher  v.  Saco,  etc.,  Savings  Inst.,  78  Me.  470;  Craig  v.  Kittredge,  46  N.  H. 
57;  Kenistons  v.  Sceva,  54  N.  H.  24.  See  Blancliard  v.  Sheldon,  43  Vt.  512; 
Brown  v.  Moore,  3  Head,  670 ;  Walsh  v.  Kennedy,  9  Phila.  178  ;  S.  C.  2  W.  N.  C. 
437  ;  31  Leg.  Int.  60  ;  Smith  v.  Smith,  30  N.  J.  Eq.  564 ;  Voorhees  v.  Combs,  33 
K  J.  L.  494. 

2  Ridden  v.  Thrall,  125  K  Y.  572  ;  S.  C.  21  Am.  St.  Rep.  758;  26  N.  E.  Rep. 
627,  affirming  55  Hun,  185. 

^  2  Reeves  Hitt.  Common  Law,  98. 

*See  tlie  question  from  Bracton,  Section  2. 

^Roberts  r.  Draper,  18  Bradw.  167. 

6  Earle  v.  Botsford,  23  N.  B.  407. 


Donatio  Ifortis  Causa.  33 

32.  Gift  by  Reason  of  Old  Age. — In  his  commeuta- 
ries  Kent  says  that  "  the  apprehension  of  death  may  arise 
from  infirmity  or  old  age,  or  from  external  and  anticipated 
danger."  He  cites  the  Digest^  to  support  this  state- 
ment,^ and  no  other  authority.  This  undoubtedly  was 
the  rule  of  the  civil  law,  but  no  English  or  American  case 
can  be  cited  to  support  it,  while  on  the  other  hand  the 
statement  is  expressly  denied.^ 

33.  A  Soldier's  Gift. — Efforts  have  been  made  to 
enforce  the  gift  of  a  soldier,  made,  when  he  enlisted,  upon 
the  condition  that,  if  he  never  returned  from  the  war  for 
which  he  enlisted,  the  gift  should  become  absolute.  Thus, 
an  alleged  donee  of  a  gun  had  previously  borrowed  it  of 
the  owner,  who.  had  just  enlisted  to  serve  as  a  soldier  in 
the  late  war  of  the  rebellion.  As  he  was  parting  with  the 
claimant,  the  latter  asked  him,  "  What  about  that  gun  of 
yours  I  have?"  when  the  former  answered,  "Well,  if  I 
never  return,  you  may  keep  the  gun  as  a  present  from 
me."  He  never  returned ;  but  it  was  held  that  the  facts 
did  not  make  a  gift,  neither  inte?^  vivos  nor  causa  mortis} 
So,  where  a  soldier  was  home  on  a  furlough,  he  deliv- 
ered three  promissory  notes  he  held  on  a  third  party 
to  the  plaintiff :  "  I  give  you  these  notes ;  if  I  never  re- 
turn, they  are  yours."  The  donor  died  in  the  army  at  the 
front.  It  was  held  an  inter  vivos.  "  The  element  of  ill- 
ness," said  the  court,  "  in  any  degree  does  not  enter  into  the 
case,  nor  does  it  come  within  the  category  of  the  conceived 
near  approach  of  death  from  an  impending  or  appre- 
hended peril.  The  alleged  donor  was  in  good  health, 
many  hundred  miles  from  the  seat  of  war,  and   if  he 

1  Dig.  39,  6,  sects.  3,  4,  5,  6. 

2  2  Kent  Com.  444. 

3  Irish  r.  Nutting,  47  Barb.  370,  385. 
*  Smith  V.  Dorsey,  38  Ind.  451. 

3 


34  Gifts. 

'  snuiFed  the  battle,  the  thunder  of  the  captains  and  the 
shouting,'  it  was  indeed  'afar  off' — too  far  to  give  any 
one  not  utterly  craven-hearted  the  least  apprehension  or 
disturbance.  The  only  expression  he  made  having  any 
relevancy  to  a  possibly  expected  war  was  that  he  was 
going  to  a  dangerous  place  and  might  never  return.  So 
it  is  dangerous  to  leave  home  on  a  railroad  journey  or  a 
steamboat  excursion,  or  to  ride  forth  after  a  pair  of  spirited 
horses ;  but  no  one  would  think  either  of  these  such  an 
impending  peril  as  to  justify  a  man  in  giving  away  his 
earthly  goods,  under  the  conception  that  death  was  near 
at  hand  if  not  already  knocking  at  the  door.  In  short, 
a  vague  and  general  impression  that  death  may  occur 
from  those  casualties  which  attend  all  human  affairs,  but 
which  are  still  too  remote  and  uncertain  to  be  regarded  as 
objects  of  present  contemj^lation  and  apprehended  danger, 
is  not  sufficient  to  sanction  such  a  gift  as  the  one  which  is 
claimed  in  this  case.  The  party  must  be  in  a  condition 
to  fear  approaching  death  from  a  proximate  and  impend- 
ing peril,  or  from  illness  preceding  exi^ected  dissolution."  ^ 
But  the  authorities  are  divided  upon  this  question.  The 
cases  given  are  where  the  donor  had  just  enlisted,  or  where 
he  was  returning  to  his  regiment  at  the  expiration  of  his 
furlough.  In  the  latter  instance  it  does  not  appear 
whether  his  regiment  was  in  the  extreme  front,  in  imme- 
diate contact  with  the  enemy,  or  not.  But  in  Tennessee 
a  case  somewhat  different  from  those  cited  above  was 
upheld.     There  a  man  left  that  State,  in  1862,  for  the 


^  Irish  ?'.  Nutting,  47  Barb.  370;  Sheldon  v.  Button,  5  Hun,  110;  Dexheimer 
V.  Gautier,  34  How.  Pr.  472;  S.  C.  5  Rob.  (N.  Y.)  216;  Gourley  r.  Linsenbigler, 
51  Pa.  St.  345.  "  In  my  opinion,  tliese  latter  decisions  are  clearly  correct.  If  such 
gifts  were  valid  as  donatio  causa  mortis,  on  the  same  ground  gifts  made  at  any  time 
by  persons  having  a  chronic  disease,  although  in  no  immediate  danger,  would  be 
equally  good,  because  their  lives  are  more  likely  to  be  shortened  than  those  of 
persons  in  health"  (Pomeroy  Eq.  Jur.,  sect.  1146,  note  1). 


Donatio  Mortis  Causa.  35 

purpose  of  avoiding  the  Confederate  conscription,  and  of 
going  to  Kentucky  and  joining  tlie  Federal  army.  This 
he  accomplished  and  died  in  the  front.  Before  going  he, 
made  a  conditional  gift  of  a  certain  sum  of  money,  to  be- 
come absolute  in  case  he  never  returned ;  and  the  gift  was 
upheld.^  A  similar  rule  seems  to  have  been  indorsed  in 
Illinois,  where  the  gift  was  made  at  the  time  of  the  enlist- 
ment.^ In  Indiana  a  soldier  home  on  a  furlough  depos- 
ited a  sum  of  money,  and  the  depositor  executed  a  written 
instrument,  acknowledging  the  receipt  of  the  money, 
promising  to  pay  it  on  demand,  and,  in  case  of  the  depos- 
itor's death,  agreeing  to  pay  it  to  the  depositor's  sister  or 
her  guardian.  The  donor  died,  and  the  money  was  paid 
over  to  the  guardian  according  to  the  agreement.  This 
was  held  to  be  a  valid  gift  to  the  sister,  and  that  her 
brother  who  survived  the  dead  soldier  was  not  entitled, 
as  heir,  to  a  part  of  it.^ 

34.  Length  of  Time  Ixterventxg  Between  Gift 
AND  Death. — There  is  no  rule  regarding  the  interval  of 
time  between  the  making  of  the  gift  and  the  death  of  the 
donor.  The  gift  must  be  made  by  the  donor  in  view  of 
his  approaching  death ;  and  this  is  one  of  the  essential 
points  in  the  transaction.  In  one  case  the  donor  lived 
five  months  after  making  the  gift,  and  it  was  held  valid. 
In  referring  to  this  fact  the  court  said :  "  But  we  are  re- 
ferred to  no  case  or  principle  that  limits  the  time  within 
which  the  donor  must  die  to  make  such  a  gift  valid.  The 
only  rule  is  that  he  must  not  recover  from  that  illness. 
If  he  do  so,  the  gift  is  avoided."  ^     It  is  clear  that  the 

^  Giiss  V.  Simpson,  4  Coldw.  288. 

2  Virgin  V.  Gaither,  42  111.  39. 

3  Baker  V.Williams,  34  Ind.  547. 

*Grymes  v.  Hone,  49  N.  Y.  17  ;  Williams  v.  Guile,  117  N.  Y.  343,  aiErming  46 
Hun,  645. 


36  Gifts. 

donor  need  not  be  in  such  extremity  as  is  requisite  to  give 
effect  to  a  nuncujDative  will ;  and  the  making  of  a  will 
after  the  alleged  f/o^ia^io  causa  mortis  is  not  conclusive  evi- 
dence that  the  gift  was  not  made  during  such  a  last  sick- 
ness as  the  law  requires.^ 

35.  Gift  by  Deed  or  in  Writing. — In  early  times  a 
gift  causa  mortis  would  not  be  made  in  writing  or  by  deed " 
where  the  delivery  of  such  writing  or  deed  took  the 
place  of  an  actual  manual  delivery  of  the  thing  given.  But 
it  is  now  settled  that  such  a  gift  is  valid."  In  such  an 
instance  if  the  donor  recover  the  gift  is  revoked,  even 
though  it  be  by  deed.*  Of  course  there  must  be  a  de- 
livery of  the  writing  or  deed,  either  to  the  donee  or  to 
some  person  for  the  donee ;  ^  and  some  authorities  hold 
that  there  must  also  be  a  delivery  of  the  thing  given.® 
The  deed  or  writing  cannot  serve  the  2:)urpose  of  a  will, 
unless  it  is  executed  as  the  statute  of  wills  requires  a 
will  to  be  executed.'^ 

36.  Donatio  Causa  Mortis  in  Trust  for  Donee. — 
A  donatio  causa  mortis  may  be  made  in  trust  for  the 
benefit  of  the  donee.  In  this  respect  it  does  not  differ 
from  a  gift  inter  vivos  ;  ^  but  the  trust  must  be  a  part  of 

^Nicholas  v.  Adams,  2  Whart.  (Pa.)  17;  reversing  Adams  x\  Nicholas,  1 
Miles,  90.     See,  also,  Ridden  v.  Thrall,  125  N.  Y.  572. 

2  See  Tate  v.  Hilbert,  2  Ves.  Jr.,  p.  120. 

2  Section  75  ;  Ward  v.  Turner,  2  Ves.  Sr.  431,  439  ;  Ellis  v.  Secor,  31  Mich.  185  ; 
Singleton  v.  Cotton,  23  Geo.  261 ;  Burney  v.  Ball,  24  Geo.  505  ;  Kenistons  v.  Sceva, 
54  N.  H.  24;  Johnson  v.  Smith,  1  Ves.  Sr.  314;  Gaunt  v.  Tucker,  18  Ala.  27. 
See  Farqnharson  v.  Cave,  2  Colly,  356,  365  note. 

^Cnrtiss  v.  Barrns,  38  Hun,  165;  Smith  v.  Downey,  3  Ired.  Eq.  268. 

^Kemper  v.  Kemper,  1  Duv.  (Ky.)  401. 

« Smith  V.  Downey,  3  Ired.  Eq.  268;  McGrath  r.  Reynolds,  116  Mass.  566. 
Gonira  Ellis  v.  Secor,  31  Mich.  185. 

'Smith's  Eq.  531.  The  fact  that  a  gift  was  made  by  deed  when  the  donor  was 
sick  a-bed  and  knew  he  would  never  recover,  does  not  alone  make  the  gift  one 
cansa  mnrtis:  Carty  v.  Connolly,  91  Cal.  15. 

s  Dresser  v.  Dresser,  46  Me.  48;  Dunne  v.  Boyd,  8  Ir.  Eq.  609  (1874). 


Donatio  Jlortis  Causa.  37 

tlie  donation,  and  be  either  contemporaneous  with  it,  or 
be  so  coupled  with  it  by  contemporaneous  words  of  refer- 
ence as  in  effect  to  be  incorporated  with  it/  Where  a 
gift  causa  mortis  was  made  in  trust,  directions  being  given 
as  to  the  disposition  of  a  part  of  the  money,  but  none  as 
to  tlie  remainder,  the  gift  was  upheld  so  far  as  the  direc- 
tions were  specific,  and  void  as  to  such  remainder." 

37.  A  Conditional  Gift  Implied. — A  donatio  causa 
mortis  is  always  a  conditional  gift — conditioned  that  the 
donee  survive  the  donor,  and  that  it  is  only  to  be  effectual 
on  the  death  of  the  donee.  It  is  not  necessary,  however, 
that  the  donor  should  so  expressly  limit  the  gift  at  the  time 
he  makes  it,  nor  in  fact  at  any  time.  "  This  bond  was 
given  in  the  extremity  of  sickness,"  said  Sir  John  Leach, 
"  and  in  contemplation  of  death  ;  and  it  is  to  be  inferred 
that  it  was  the  intention  of  the  donor  that  it  should  be 
held  as  a  gift  only  in  case  of  his  death.  If  a  gift  is  made 
in  expectation  of  death,  there  is  an  implied  condition  that 
it  is  to  be  held  only  in  the  event  of  death."  ^  "  The  con- 
dition," said  an  American  court,  "  need  not  be  expressed, 
as  it  is  always  implied  when  the  gift  is  made  in  the 
extremity  of  sickness,  or  in  contemplation  of  death."* 
A  further  condition  is  that  the  donor  may  at  any  time 
revoke  the  gift. 

38.  Conditional  Donatio  Causa  Mortis. — Like  a 
gift  inter  vivos,  a  gift  causa  mortis  may  be  made  upon  a 
condition.     Tlie   expression  of  the   condition,   however, 

1  Dunne  v.  Boyd,  8  Jr.  Eq.  609  (1874). 

^  Beals  V.  Crowley,  59  Cal.  G65. 

'Gardner  v.  Parker,  3  Madd.  102;  Edwards  v.  Jones,  1  My.  &  Cr.  226; 
Staniland  v.  Willott,  3  MacN.  &  G.  661;  Earle  v.  Botsford,  23  N.  B. 
407. 

*  Emery  r.  Clough,  63  N.  H.  552;  Henschel  r.  Maurer,  69  Wis.  576;  S.  C.  2 
Am.  Et  Rep.  757 :  Conser  r.  Snowden,  54  Md.,  p.  183;  Taylor  v.  Henry,  48  Md., 
p.  559.     See  Edwards  i'.  Jones,  7  Sim.  325,  335. 


38  Gifts. 

must  form  a  part  of  the  donation,  and  be  either  contem- 
poraneous with  it,  or  be  so  coupled  with  it  by  contempo- 
raneous words  of  reference  as  in  effect  to  be  incorj^orated 
with  it.^ 

39.  Gift  Inter  Vivos  During  Illness. — Although 
there  is  a  joresumption  that  a  gift  made  during  the  last 
illness  of  the  donor  is  a  donatio  mortis  causaf  yet  this 
presumption  may  be  overcome,  and  it  be  shown  that  a 
gift  made  under  such  circumstances  was  in  fact  an  abso- 
lute gift — a  gift  inter  vivos.  "  Where  a  gift  of  personal 
property  is  made  with  intent  to  take  effect  immediately  and 
irrevocably,"  said  the  Supreme  Court  of  Wisconsin,  "  and 
is  fully  executed  by  complete  and  unconditional  delivery,  it 
is  certainly  binding  upon  the  donor  as  a  gift  inte?'  vivos, 
even  if  the  donor  at  the  time  is  in  extremis,  and  dies  soon 
after."  ^  But  where  such  intent  is  not  manifest  and  the 
gift  is  otherwise  made,  under  such  circumstances  it  will 
ordinarily  be  regarded  as  a  gift  causa  mortis."  ^ 

40,  A  Will  Insufficiently  Executed  Cannot  be 
Deemed  a  Donatio  Causa  Mortis. — If  a  gift  by  will 
fails  because  the  instrument  is  not  executed  as  the  statute 
requires,  it  cannot  be  deemed  and  construed  a  donatio 
causa  mortis;  and  this,  too,  even  though  the  will  only 
fails   because    it    is    improperly   attested.^      Thus    some 

1  Dunne  v.  Boyd,  8  Ir.  Eq.  609  (1874). 

2  Gardner  v.  Parker,  3  Madd.  102. 

3  Citing  Tate  I'.  Leithead,  Kay,  658,  and  McCarty  v.  Kearnan,  86  111.  291  ;  Carty 
V.  Connolly,  91  Cal.  15. 

*Henschel  v.  Maurer,  69  Wis.  576 ;  2  Am.  St.  Rep.  757  ;  Rliodes  v.  Cliilds,  64 
Pa.  St.  23  ;  Grymes  v.  Hone,  49  N.  Y.  17  ;  S.  C.  10  Am.  Rep.  313;  Dresser  v. 
Dresser,  46  Me.  48. 

A  deed  executed  on  death-bed  of  donor  was  held  not  to  be  a  donatio  mortis  causa  ; 
and  the  mere  fact  that  it  was  thus  executed  did  not  cast  on  the  donee  the  burden 
of  showing  that  it  was  not  such  a  gift:  Carty  v.  Connolly,  91  Cal.  15. 

5  Mitchell  V.  Smith,  33  L.  J.  Ch.  596  ;  S.  C.  12  W-  R.  941 ;  10  L.  T.  (N.  S  ) 


Donatio  Mortis  Causa.  39 

months  before  his  death  a  testator  gave  his  nephew,  who 
was  residing  with  him,  certain  promissory  notes,  of  which 
he  was  the  holder  and  payee,  with  the  words  :  "  I  give 
you  these  notes,"  adding  soon  after,  that  S.  should  have 
them  at  his  death,  but  that  he  wished  to  be  master  of 
tiiem  as  long  as  he  lived.  On  the  same  day  all  the  notes 
were  indorsed  w^ith  these  words :  "  I  bequeath,  pay  the 
within  contents  to  S.,  or  his  order  at  my  death,"  and  this 
indorsement  was  signed  by  the  testator,  and  attested  by  a 
single  witness.  This  was  held  to  be  only  a  testamentary 
disposition  of  the  pro23erty,  which  failed  through  infor- 
mality, and  was  not  donatio  causa  mortis  ;  but  it  Avas  said 
that  if  the  payee  had  not  expressed  an  intention  to  keep 
the  ownership  during  his  life,  the  disposition  might  liave 
been  construed  as  a  gift  inter  vivos  in  trust  for  the  donor 
for  life,  and  afterward  for  the  indorsee  absolutely.^ 

41.  Gift  of  Entire  Estate  Cannot  Be  Made  Mor- 
tis Causa. — In  Pennsylvania  the  court  declined  to  up- 
hold a  gift  causa  mortis  of  the  entire  estate  of  the  donor, 
because  it  overthrew  the  provisions  of  the  statute  of  wills. 
In  that  case  the  donor  went  to  the  house  of  his  sister-in- 
law,  taking  all  her  property  with  her,  and  rented  a  room 
in  the  house.  Some  of  the  articles  were  in  two  trunks, 
others  in  the  band-box,  and  others  hanging  in  a  closet  in 
the  room.  Three  days  after  making  this  move,  the  donor 
died.  Shortly  before  her  death  she  said,  addressing  the 
donee,  "  I  am  dying ;  all  that  I  have  is  here,  and  all  is 
yours  ;  do  everything  for  me ;  there  are  my  keys,  take 
them."     The  articles  in  the  trunk  were  worth  several 

801  ;  4  De.  G.,  J.  &  S.  422 ;  Earle  v.  Botsford,  23  N.  B.  407  ;  McGrath  v.  Rey- 
nold«,  116  Mass.  566. 

'  Mitchell  V.  Smith,  supra.  If  it  is  the  design  of  the  donor  that  an  instrument 
should  operate  in  his  lifetime  it  will  not  be  construed  as  a  will,  though  containing 
expressions  like  those  frequently  used  in  drawing  wills  :  Faulk  v.  Faulk,  23  Tex. 
653. 


40  Gifts. 

hundred,  probably  two  thousand,  dollars.  "  The  gift  in 
the  case  before  us,"  said  the  court,  "  professes  to  embrace 
all  the  donor's  property,  and  to  be  made  in  prospect  of 
death,  and  is  therefore  a  will,  if  it  receive  the  sanction  of 
law.  .  .  ,  This  case  is  so  entirely  peculiar  in  its  char- 
acter that,  if  we  take  our  statute  of  wills  as  the  general 
rule  for  such  dispositions,  as  we  are  bound  to  do,  and 
treat  the  case  of  donationes  mortis  causa  as  exceptions 
which  are  not  to  be  extended  by  way  of  analogy,  then  we 
are  clear  of  all  embarrassment  as  to  the  principle  on 
which  the  case  is  to  be  decided.  It  is  not  pretended  that 
any  gift  like  this  has  ever  been  held  good,  and  it  may  be 
safely  declared  that  no  mere  gift  made  in  prospect  of 
death  and  professing  to  j^ass  all  one's  property  to  another, 
to  take  effect  after  death,  can  be  valid  under  our  statute 
of  wills,  no  matter  what  delivery  may  have  accompanied 
it.  If  this  is  not  true,  then  it  is  j^lain  that  the  statute  of 
wills,  so  far  as  it  is  intended  to  change  all  modes  of 
disposing  of  personal  property  at  death  which  it  does  not 
provide  for,  is  repealed  by  the  decisions  of  the  courts. 
It  is  not  necessary  to  point  out  the  danger  of  sustaining 
such  a  donation  as  this,  for  no  thinking  mind  can  fail  to 
see  it,  and  it  was  this  very  consideration  that  led  to  the 
precautions  which  are  provided  in  the  statute  on  the  sub- 
ject of  nuncupative  wills.  We  cannot  even  glance  at  the 
these  precautions  without  seeing  that  they  were  designed 
to  defeat  a  gift  sustained  by  such  evidence  as  was  given 
in  this  case,  and  to  j^revent  oral  dispositions  in  the  nature 
of  last  wills  from  being  made  under  such  susj)icious  cir- 
cumstances." ^  But  of  this  case  it  was  subsequently  said  : 
"  In  that  case  there  was  a  variety  of  chattels — they  were 
not  specified — nothing  more  than  a  constructive  delivery 

1  Headley  v.  Kirby,  18  Pa.  St.  326 ;  S.  C.  1  Araer.  L.  Reg.  (O.  S.)  25 ;  Marshall 
V.  Berry,  13  Allen,  43 ;  Meach  v.  Meach,  24  Vt.  591. 


Donatio  2Iortis  Causa.  41 

occurred — the  language  was  evidently  testamentary — and 
it  referred  exj)ressly  to  all  her  property.  In  these  par- 
ticulars the  case  is  broadly  distinguished  from  the  present, 
and  it  does  not  decide  that  where  a  single  chattel  is  the 
whole  of  a  man's  estate,  or  the  '  principal  part  of  his  prop- 
erty,' it  may  not  be  given  causa  mortis.  The  doctrine  of 
that  case,  predicated  of  the  circumstances  then  before  the 
court,  is  not  to  be  questioned,  for  it  rests  on  sound  rea- 
sons ;  but,  if  applied  to  a  case  like  this,  it  would  defeat 
all  gifts  made  as  memorials  of  gratitude  and  affection  in 
the  most  solemn  manner."  Consequently  a  gift  of  the 
principal  part  of  the  donor's  property  was  uplield  ;  ^  and 
so  has  a  gift  of  all  his  property  been  held  valid.^ 

42.  Effect  of  a  Eecovery  from  Illxess. — If  the 
donor  recover  from  the  sickness  during  which  he  made 
the  gift,  the  gift  is  revoked,  and  he  may  reclaim  it.  All 
the  authorities  are  agreed  w^on  this  point ;  ^  for  the  gift 
is  always  made  upon  the  condition,  expressed  or  implied, 
that  it  is  to  be  void  if  the  donor  recover  from  his  present 
illness.*  In  such  an  instance,  upon  his  recovery  the 
donor  may  revoke  the  gift ;  and  if  he  do  not  do  so  in  his 
lifetime,  his  personal  representative  may  do  so.  Thus 
where  the  donor  recovered  and  then  became  insane,  it 
was  held  that  his  committee  could  recover  the  thing  given 
from  the  donee.^  The  question  is  one  that  necessarily 
arises,  what  is  a  recovery ;  or  what  is  such  a  recovery  as 

^Micliener  r.  Dale,  23  Pa.  St.  59-     See  Harmon  v.  Osgood,  151  ^[ass.  501. 

''Thomas  v.  Lewis,  15  S.  E.  Kep.  (Va.)  389.  Of  course  it  is  void  if  there  are 
any  debts:  Wetmore  v.  Brooks,  18  N.  Y.  Suiip.  852  (by  statute.) 

2  Grymes  v.  Hone,  49  N.  Y.  17. 

*  Gardner  v.  Parker,  3  Madd.  185;  Merchant  v.  Merchant,  2  Bradf.  432; 
Rhodes  v.  Childs,  64  Pa.  St.  18  ;  Thompson  v.  Thompson,  12  Texas,  327;  Smith 
V.  Downey,  3  Ired.  Eq.  268;  Thomas  v.  Lewis,  15  S.  W.  Rep.  389. 

^Staniland  v.  Willott,  3  MacN.  &  G.  664;  Henry  v.  Fowler,  3  Dal}-,  199. 
Qucere,  does  the  birth  of  a  posthumous  child  work  a  revocation  of  a  donatio 
morlis  causa?  Bloomer  v.  Bloomer,  2  Bradf  339.     It  certainly  does  not. 


42  Gifts. 

will  defeat  the  gift  ?  This  is  difficult  to  answer,  for  there  is 
no  light  upon  the  subject.  A  man  who  is  in  imminent 
peril  because  of  a  sickness  or  disorder  that  possesses  him 
is  usually  confined  to  his  bed ;  and  if  he  so  far  recover 
as  to  leave  his  room  and  his  house,  and  to  attend  to  some 
of  his  daily  affairs,  it  cannot  be  said  that  the  gift  is  unre- 
voked. A  man  with  a  chronic  disease  may  be  afflicted 
for  years  wdth  his  disorder,  and  may  well  know  and  con- 
sider that  he  never  will  recover ;  and  yet  a  gift  made 
while  he  is  going  about  his  usual  and  daily  occupations 
could  not  be  considered  as  made  during  his  last  illness,  al- 
though he  might  die  within  the  next  twenty-four  hours. 
A  man  having  the  heart  disease  severely  is  usually  in 
imminent  peril  of  death,  and  still  performs  all  the  avoca- 
tions of  a  well  man ;  yet  a  gift  made  by  him  as  a  donatio 
mortis  causa  would  not  be  valid  though  he  were  stricken 
and  die  within  the  next  three  minutes,  unless,  at  the  time 
of  the  gift,  he  had  clear  ]3remonition  of  his  approaching 
death.  Perhaj)s,  it  may  be  said  that  if  the  donor  so  far 
recover  that  he  has  such  hope  of  his  complete  or  tempo- 
rary recovery  that  he  does  not  consider  that  he  will  die 
of  his  present  severe  illness,  and  believes  that  he  will 
again  recover  his  accustomed  condition  of  health  ;  and  he 
so  far  approaches  the  condition  his  belief  leads  him  to  be- 
lieve he  will  attain  as  to  be  able  in  a  measure  to  re- 
sume his  usual  avocations  or  superintend  his  affairs, 
although  he  does  not  leave  his  residence,  the  gift  may  be 
considered  revoked.     Further  than  this  it  is  difficult  to  go. 

43.  DoxEE  Dying  Before  Donor. — If  the  donee  die 
before  the  donor,  the  gift  is  avoided  and  a  nullity ;  ^  for 
the  gift  is  upon  the  condition,  imj^lied  by  law,  that  the 
donee  survives  the  donor.^ 

^  Gourley  v-  Linsenbigler,  5 1  Pa.  St.  345. 

^  Smith «).  Ferguson,  90  Ind.  229  ;  Huntington  v.  Gilmore,  14  Barb.  243  ;  Jones 


Donatio  3Iortis  Causa.  43 

44.  Revocatiox  During  His  Lifetime  by  Doxoe. — 
All  the  authorities  admit  that  the  donor,  at  any  time 
during  his  lifetime,  may  revoke  a  donatio  mortis  causa ; 
for  the  gift,  although  assented  to  by  the  donee,  is  not  per- 
fected until  the  donor  dies/  Of  course,  a  very  sick  man, 
fully  expecting  to  die  from  his  then  sickness,  may  make 
an  irrevocable  gift  inter  vivos  ;  for  the  fact  of  his  sickness 
does  not  i^revent  him  from  so  doing ;  and  if  he  make  such 
a  gift,  it  is  irrevocable  after  it  is  perfected.  But  this 
rule  is  made  with  the  proviso  that  the  revocation  is  made 
when  the  donor  has  mind  enough  to  understand  what  he 
is  doing ;  for  a  revocation  by  a  donor  insane  at  the  time, 
which  is  not  subsequently  ratified  by  him  during  a  lucid 
interval,  is  no  revocation  ;  and  the  gift  would  still  remain 
good.  Yet  if  the  donee  were  to  acquiesce  in  the  revoca- 
tion of  the  donor  when  insane,  and  were,  at  least,  to  de- 
liver up  the  article  given,  this  would  amount  to  an  aban- 
donment on  his  part ;  and  he  could  not  again  reclaim  it, 
more  especially  could  he  not  reclaim  it  after  the  demise 
of  the  donor,  who  even  should  die  without  knowledge  of, 
or  a  lucid  interval  betAveen,  the  revocation  and  his 
death. 

45.  Revocation  by  Will. — A  gift  mortis  causa, 
it  is  said,  cannot  be  revoked  by  the  will  of  the  donor ; 
and  the  reason  assigned  for  this  is  that  the  will  not 
operating  until  the  donor's  death,  and  such  donor,  at 
his  decease,  is   divested  of  his  property  in  the  subject 

V.  Selby,  Finch,  300  ;  Henschel  v.  Maurer,  69  Wis.  576  ;  S.  C.  2  Am.  St.  Rep. 
757  ;   Michener  v.  Dale,  23  Pa.  St.  59.     See  Section  123. 

1  Dickeschied  v.  Bank,  28  W.  Va.  340,  360;  Emery  v.  Clough,  63  N.  H.  552; 
Gano  V.  Fisk,  43  Ohio  St.  462 ;  Bunn  v.  Marham,  7  Taunt.  224;  Daniel  v.  Smith, 
64  Cal.  346 ;  Parish  v.  Stone,  14  Pick.  198  ;  Henschel  v.  Maurer,  69  Wis.  576 ;  S. 
C.  2  Am.  St.  Rep.  757.  See  Section  42.  Tliis  was  the  rule  of  the  Roman  law: 
Sandar's  Justinian,  p.  147. 


44  Gifts. 

of  the  gift,  no  right  or  title  in  it  joasses  to  his  rejDresenta- 
tives.^ 

46.  When  Title  to  Thing  Given  Passes. — Some 
little  confusion  has  arisen  concerning  the  time  when  the 
title  to  the  thing  given  passes  from  the  donor  to  the  donee. 
Does  it  pass  at  the  time  delivery  is  made  to  the  donee,  or 
only  when  the  donor  dies  ?  Or  does  it  pass  at  the  time 
of  the  delivery,  conditioned  that  if  the  donor  recover,  or 
revoke  the  gift,  or  the  donee  does  not  survive  the  donor, 
it  shall  revert  to  the  donor  ?  There  is  some  confusion  in 
the  books  on  this  subject,  probably  rising  from  the  two 
rules  recognized  by  the  Roman  law.  At  E-ome  two  modes 
of  donatio  mortis  causa  were  recognized.  "  In  one,  the 
subject  of  the  gift  was  given  on  condition  that  it  should 
become  the  property  of  the  donee  in  the  event  of  the 
donor's  death;  in  the  other,  the  subject  of  the  gift  became 
at  once  the  property  of  the  donee,  but  on  condition  that 
he  should  return  it  to  the  donor  in  the  event  of  his  re- 
covery." ^  The  English  courts  seem  to  have  adopted  the 
former  rule.  Thus  it  is  said  in  one  reported  case  that 
"  A  donatio  mortis  causa  leaves  the  whole  title  in  the 
donor,  unless  the  event  occurs  which  is  to  divest  him." 
Again  :  "  A  party  making  a  donatio  mortis  causa  does  not 
part  with  the  whole  interest,  save  only  in  a  certain  event ; 
and  it  is  of  the  essence  of  such  a  gift  that  it  shall  not  other- 
wise take  effect."  ^  So  in  a  very  celebrated  case,  speaking 
of  the  power  of  the  courts  to  enforce  an  incomplete  gift, 
Lord  Eldon  said  :  "  I  apprehend  that  in  a  case  where  a 
donatio  mortis  causa   has  been   carried  into  effect  by  a 

1  Emery  v.  Clough,  63  N.  H.  552  ;  Jones  v.  Relby,  Finch,  300  [quaere) ;  Ham- 
brooke  v.  Simmons,  4  Kuss.  25  [quccre);  Johnson  r.  Smith,  1  Ves.  Sr.  314. 

2  Smith's  Equity,  528. 

3 Edwards  v.  Jones,  1  Mylne  &  Cr.  226.  The  court  liere  is  ''speaking  of  the 
gift  itself,  and  not  of  the  mere  act  of  delivery,  or  that  which  is  equivalent 
thereto :"  Stanilaad  v.  Willott,  3  MacN.  &  G.  664. 


Donatio  Mortis  Causa.  45 

court  of  equity,  that  court  of  equity  lias  not  considered  the 
interest  as  vested  by  the  gift,  but  that  the  interest  is  so 
vested  in  the  donee  that  that  donee  has  a  right  to  call  on 
a  court  of  equity,  and,  as  to  the  personal  estate,  to  compel 
the  executor  to  carry  into  effect  the  intention  manifested 
by  the  person  he  represents."  ^  Some  American  cases 
have  adopted  this  rule.^  On  the  other  hand,  it  is  said 
that  the  "  title  to  a  gift  causa  moi'tis  passes  by  the  de- 
livery only  in  the  lifetime  of  the  donor,  and  his  death 
perfects  the  title  in  the  donee  by  terminating  the  donor's 
right  or  power  of  defeasence ;"  ^  and  this  is  the  better 
view.* 

47.  Administratoe,  or  Executor  Has  No  Control 
Over  Property  Given — Proof  ii;^  Probate  Court. — 
The  property  given  does  not  pass  to  the  administrator  or 
executor  of  the  donor.  He  has  no  control  over  it.  It  is 
not  necessary  to  prove  it  in  the  Probate  Court,  even 
though  it  be  in  writing  or  a  deed,^  No  act  or  assent 
on  the  part  of  the  administrator  is  necessary.  The  gift 
is  not  taken  from  him,  but  against  him.^  If  the  adminis- 
trator or  executor  obtain  possession  of  the  subject-matter 
of  the  gift,  he  is  liable  to  an  action  of  assumpsit  for  its 
value.'^ 

48.  Contribution  with  Legatees. — Unlike  legacies, 
if  the  assets  of  the  estate  are  insufficient  to  pay  all  the 

I  Duffield  V.  Elwes,  1  Bligh  (N.  S.),  497,  534 ;  S.  C.  1  Dow.  H.  268. 

^  Huntington  v.  Gilmore,  14  Barb.  243. 

3  Emery  v.  Clough,  63  N.  H.  552. 

*  Nicholas  v.  Adams,  2  AVhart.  (Pa.)  17;  Marshall  r.  Berry,  13  Allen,  4.3,  46; 
Trorliclit  v.  "Weizenecker,  1  Mo.  App.  482;  Daniel  v.  Smith,  64  Cal.  346  ;  Parish 
V.  Stone,  14  Pick.  198  ;  Devol  v.  Dye,  123  Ind.  321.  The  case  of  Barnes  v.  People, 
25  111.  App.  136,  is  certainly  erroneous ;  donatio  inter  vivos,  Section  263. 

5  Emery  v.  Clough,  63  N.  H.  552 ;  Raymond  v.  Sellick,  10  Conn.  480,  485. 

«Tate  V.  Hilbert,  2  Ves.  Jr.  Ill ;  Gaunt  v.  Tucker,  18  Ala.  27  ;  Ashton  v.  Daw- 
son, Sel.  Ch.  Cas.  14;  Borneman  v.  Sidlinger,  18  Me.  225. 

'  Michener  v.  Dale,  23  Pa.  St.  59. 


46  Gifis. 

legatees,  a  donee  of  a  gift  mortis  causa  is  not  liable  to  con- 
tribution. He  lias  his  gift  at  the  death  of  the  testator  and 
retains  it  in  full,  although  every  devise  under  the  will 
must  fail  because  of  the  lack  of  assets  or  property  of  the 
estate/ 

49.  Subject  to  Donor's  Debts. — A  donor  may  not 
make  a  gift  unless  he  has  left  sufficient  property  to  pay 
his  debts.  His  creditors  stand  first,  the  donees  second. 
He  must  be  just  before  he  is  generous — just  to  his  credit- 
ors, generous  to  his  beneficiaries.  A  donatio  mortis  causa 
is  always,  therefore,  liable  to  be  taken  to  pay  the  donor's 
creditors,  if  there  be  not  sufficient  property  of  his  estate 
to  pay  them.^  But  if  the  donee  is  a  creditor  of  the 
estate  it  is  no  defense  to  an  action  brought  by  him  to  re- 
cover the  property  from  the  administrator,  that  the  gift  is 
necessary  to  j^ay  the  donor's  debts,  where  there  is  a  suffi- 
cient amount  of  assets  left  to  pay  all  the  other  creditors 
than  himself.  In  such  an  instance  he  elects  to  take  the 
gift  rather  than  to  insist  that  his  claim  shall  be  paid.^ 
He  may  not,  however,  insist  that  both  his  claim  be  paid 
and  his  gift  upheld,  if  he  thereby  would  deprive  any  of 
the  other  creditors  of  the  amounts  due  them. 

1  Emery  v.  Clough,  63  N.  H.  552 ;  Gaunt  v.  Tucker,  18  Ala.  27. 

2  Tate  V.  Leitliead,  Kay,  658;  Mitchell  v.  Pease,  7  Cush.  350;  Chase  v.  Bed- 
ding, 13  Gray,  418  ;  Wetmore  v.  Brooks,  18  K  Y.  Supp.  852  (by  statute)  ;  Davis 
V.  Key,  125  Mass.  590  ;  ]\Iicliener  v.  Dale,  23  Pa.  St.  59.  The  creditors  may  reach 
the  property  on  trustee  process:  Harmon  v.  Osgood,  151  Mass.  501. 

3  Pierce  v.  Boston  Five  Cents  Savings  Bank,  129  Mass.  425  ;  S.  C.  37  Am.  Kep. 
371. 


CHAPTER   III. 

DONOR    AND    DONEE. 

50.  General  Eule — Conversion.  62.  Administrator  or  Executor  of  Do- 

51.  Donee  Must  Be  Certain.  nor. 

52.  Infant  Donor.  63.  Donor's   Gift    to    His    Illegitimate 

53.  Infant  Donee.  Children  or  Mistress. 

'A.  Husband  to  Wife.  64.  Dead  Person — Uonee  in  Ventre  sa 

55.  Wife  as  Donor.  Mere. 

56.  Wife  as  Donee  of  Third  Person.  65.  Private  Corporation. 

57.  Foreigner  as  Donee.  66.  Gift  to  Officer  of   Corporation   to 

58.  Legislature  as  Donoi-.  Unduly  Influence  His  Action. 

59.  Slave  as  Donee.  67.  Corporation  as  Donee. 

60.  Lunatic  as  Donor.  68.  Municipal  Corporation  as  Donor. 

61.  One  of  Two  Donees  or  More  Inca-  69.  Municipal  Corporation  as  Donee. 

pable  of  Taking. 

50.  General  Rule — Conversion. — Any  one  not  in- 
sane, and  twenty-one  years  of  age,  and  not  a  married 
woman,  may  be  a  donor,  as  a  general  rule.  Of  cour.?e, 
one  not  the  owner  of  proj)erty  cannot  give  it  away  so  as  to 
confer  a  title  on  the  donee  any  more  than  he  may  sell  it. 
A  gift  of  such  j^roperty,  using  all  the  formalities  of  a  valid 
gift,  including  a  delivery  to  the  donee,  would  be  a  conver- 
sion, and  either  the  donor  or  donee,  or  both,  would  be 
liable  to  the  owner  for  its  value.  As  between  the  donor 
and  donee,  the  gift  would  be  valid,  as  much  so  as  if  it 
were  a  sale. 

51.  Donee  Must  Be  Certain. — The  object  of  the 
donor's  bounty  must  be  clearly  pointed  out,  and  not  rest 
in  mere  conjecture  or  be  a  matter  of  speculation.  Thus, 
where  a  lady  drew  a  check  on  her  son-in-law,  who  had  her 
moneys  in  his  hands,  in  favor  of  her  daughter,  his  wife, 
but  afterward  told  him  to  hold  the  money  in  trust  for  his 

47 


48  Gifts. 

wife  during  her  life  and  afterward  for  her  children,  it  was 
held  that  the  oral  direction  superseded  the  written  check, 
and  that,  under  the  oral  directions,  the  objects  of  the  gift 
were  not  sufficiently  designated/ 

52.  Infant  Donor. — An  infant  cannot  bind  himself  by 
a  sale  of  his  property,  nor  can  he  bind  himself  by  a  gift 
of  it.  Neither  the  one  nor  the  other  is  binding  upon 
him  ;  and  very  much  less  so  upon  his  guardian,  when  he 
has  one.  His  guardian  may  revoke  his  disposal  of  his 
property,  both  by  sale  and  gift,  and  recover  possession 
thereof;  for  the  possession  of  an  infant's  estate  is  in  his 
guardian.^  "  And  it  is  to  be  known,"  says  Bracton,  "  that 
all  jjersons  are  prohibited  to  make  a  donation,  who  have 
not  a  general  and  free  administration  of  their  own  affairs, 
as  those  minors,  who  are  under  guardianship  or  curator- 
ship,  and  who  do  not  know  how  to  regulate  themselves, 
but  they  may  receive  (under  the  authority  of  a  guardian) 
and  may  make  their  own  condition  better.  But  they  can- 
not give  away,  nor  make  their  own  condition  worse.  And 
for  this  reason  they  cannot  give  away,  because  they  can- 
not consent  to  a  donation,  neither  with  nor  without  the 
authority  of  a  guardian."^ 

53.  Infant  Donee. — An  infant  may  be  a  donee,  and 
the  gift  will  be  binding  upon  his  adult  donor.  A  gift  to 
an  infant  belongs  to  the  infant  and  not  to  his  parent ; 
and  the  latter  may  not  use  the  thing  given  for  his  own 
use  and  benefit.  If  a  minor  receives  a  gift  of  much  value, 
the  usual  j)ractice  is  to  have  a  guardian  appointed  to  take 

1  Hughes  V.  Stubbs,  11  Jnr.  N.  S.  913;  S.  C.  13  L.  T.  N.  S.  492.  See  Eoberts 
V.  Eoberts,  11  Jur.  N.  S.  992  ;  Holeman  v.  Fort,  3  Strob.  Eq.  66 ;  Sheedy  v.  Roach, 
124  Mass.  472;  Barnura  v.  Reed,  136  111.  338. 

^Borufff.  Stipp,  126  Ind.  32. 

^  1  Bract.  (Twiss  ed.)  94 ;  4  lb.  275.  An  emancipated  minor  cannot  make  a 
binding  gift  of  his  property  :  Johnson  v.  Alden,  15  La.  Ann.  505. 


Donor  and  Donee.  49 

charge  of  the  property  given.^  But  it  is  easy  to  see  that 
a  gift  may  entail  upon  an  infant's  estate,  although  it  was 
absolutely  unconditional,  such  a  burden  and  expense  that 
its  acceptance  would  be  a  positive  injury  to  him.  In 
such  an  instance  the  courts  would,  no  doubt,  refuse  to  up- 
hold it,  and  this,  too,  even  if  his  guardian  consent  to  it, 
in  an  instance  where  its  acceptance  was  clearly  a  burden 
without  adequate  comj^ensation." 

54.  HusBAXD  TO  Wife. — A  husband  may  make  a  gift 
directly  to  his  wife  without  the  intervention  of  a  trustee  ; 
and  equity  will  sustain  it.  Such  a  gift  may  be  by  deed 
or   by   parol ;  and  may  be  of  personal  or  real  property.^ 

^  Keeler  v.  Fassett,  21  Vt.  539  ;  Jackson  v.  Combs,  7  Cow.  36  ;  Miles  v.  Boyden, 
3  Pick.  213 ;  Cowell  v.  Daggett,  97  Mass.  434 ;  Kenningliam  v.  M'Langhlin,  3 
Hon.  80  ;  Perry  v.  Carmichael,  9o  111.  519  ;  Clark  v.  Smith,  13  S.  C.  585.  Brac- 
ton  recotinizes  the  validity  of  a  gift  to  a  minor :  1  Bract.  (Twiss  ed.)  93,  101. 

'•^  A  father  may  give  his  child  his  own  earnings,  at  least  wlien  not  in  fraud  of 
his  creditors  :  Mo>  dy  r.  Walker,  89  Ala.  619  ;  and  the  son  may  then  make  a  \'alid 
contract  with  him  concerning  them  :  Danley  v.  Kector,  5  Eng.  (Ark.)  211. 

^  Deraing  v.  Williams,  26  Conn.  226  ;  Slanning  v.  Style,  3  P.  Wms.  334  ;  Lucas 
V.  L-icas,  1  Atk.  270  ;  Freemantle  r.  Bankes,  5  Ves.  79 ;  Battersbee  v.  Farrington, 
1  Swanst.  106;  Latourette  v.  Williams,  1  Barb.  9;  Neufville  V.Thomson,  3  I'dw. 
92;  McKennan  r.  Phillips,  6  Whart.  571 ;  Kee  v.  Vasser,  2  Ired.  Eq.  553;  Stan- 
wood  V.  Stanwood,  17  Mass.  57  ;  Phelps  v.  Phelps,  20  Pick.  556  ;  Adams  v.  Brack- 
ett,  5  Met.  280;  Jones  v.  Obenchain,  10  Gratt.  259;  Schooler  v.  Schooler,  18 
Mo.  App.  69;  McCoy  v.  Hyatt,  80  Mo.  130;  Armitage  r.  Mace,  96  N.  Y.  538  ; 
Phillips  V.  'Wooster,  36  N.  Y.  412;  Whiton  r.  Snyder,  88  N.  Y.  299  ;  Shuttle- 
worth  i'.  Winter,  55  N.  Y.  624  ;  San  ford  r.  Finkle,  112  111.  146;  Succession  of 
Hale,  26  La.  Ann.  195;  Hilton  v.  Morse,  75  Me.  258  ;  Lane  v.  Lane,  76  Me.  521 
Tullis  V.  Fridley,  9  Minn.  79 ;  Bradshaw  r.  Mayfield,  18  Tex.  21 ;  Hawkins  v 
Lee,  22  Tex.  544 ;  Fitts  v.  Fitts,  14  Tex.  443 ;  Clawson  v.  Clawson,  25  Tnd.  229 
Sims  V.  Rickets,  35  Ind.  181 ;  Kane  v.  Desmond,  63  Cal.  464 ;  Hart  v.  Roberlson 
21  Cal.  346;  Hess  v.  Brown,  111  Pa.  St.  124;  Walsh  v.  Cliambers,  13  Mo.  App 
301  ;  Bettes  v.  Magoon,  85  Mo.  301  ;  Ruse  v.  Bromberg,  88  Ala.  619;  Lammons 
V.  Allen,  88  Ala.  417  ;  Craig  r.  Monitor,  76  la.  577  ;  Callender  v.  Horner,  26  Neb. 
687  ;  Tyrrell  r.  York,  57  Hun,  292;  Fruhauf  r.  Bendheim,  127  X.  Y.  587.  Such 
a  gift  creates  in  her  a  separate  estate  without  words  to  that  effect:  Carpenter  v. 
Franklin,  89  Tenn.  142;  and  when  she  is  his  executrix  she  is  not  chargeable 
with  it  as  such:  //i  re  Stevens,  83  Cal.  322 ;  Hayes  r.  Alliance,  etc.,  Ins.  Co.,  8 
Jr.  Rep  149  (1881) ;  Walter  v.  Hodge,  Wils.  Ch.445. 

"The  legal  unity  of  husband  and  wife  have,  in  Georgia,  for  most  purposes, 
4 


50  Gifts. 

Formerly  it  was  held  that  she  could  not  take  a  gift  from 
him  ;  and  this  arose  because  of  the  legal  fiction  that  hus- 
band and  wife  are  one,  and  possession  by  the  donee  being 
essential  to  the  validity  of  every  gift,  her  possession  was 
her  husband's,  and  thus,  as  toward  her,  he  could  not  di- 
vest himself  of  the  possession  of  the  thing  given  ;  and  the 
gift  must,  therefore,  fail/  To  this  there  was  an  exception 
in  the  case  of  pin  money  or  paraphernalia.^  The  earnings 
of  a  wife  become  hers  without  any  express  gift,  if  she  is 
permitted  to  receive  and  retain  them  in  her  own  name 
for  her  own  benefit.^ 

been  dissolved,  and  a  legal  duality  established.  A  wife  is  a  wife,  and  not  a  hns- 
band,  as  she  was  formerly.  Legislative  chemistry  has  analyzed  the  conjugal 
unit,  and  it  is  na  longer  treated  as  an  element,  but  as  a  compound.  A  hnsband 
can  make  a  gift  to  his  own  wife,  although  she  lives  in  the  house  with  him  and  at- 
tends to  her  household  duties,  as  easily  as  he  can  make  a  present  to  his  neighbor's 
wife.  Tills  puts  her  on  an  equality  witli  other  ladies,  and  looks  like  progress. 
Under  the  new  order  of  things,  when  he  induces  her  to  enter  into  the  business  of 
keeping  boarders,  and  promises  to  let  her  have  all  the  proceeds,  he  is  allowed  to 
keep  liis  promise  if  she  keeps  the  boarders.  It  would  seem  that  the  law  ought 
to  tolerate  him  in  being  faithful  to  liis  word  in  such  a  matter,  even  though 
he  has  pledged  it  only  to  his  wife,  and  we  think  it  does :"  Chief  Justice  Bleckley 
in  McNaught  v.  Anderson,  78  Geo.  499. 

'  Lucas  V.  Lucas,  3  Atk.  270  ;  Phillips  v.  Barnet,  L.  R.  1  Q.  B.  Div.  436;  Roe  v. 
Wilkins,  4  A.  &  E.  86.  Where  a  statute  provided  that  all  her  personal  property 
consisting  of  money  should  be  his  so  long  as  it  was  not  invested,  and  a  husband 
allowed  his  wife  to  purchase  land  with  the  proceeds  of  her  separate  estate,  was 
not  conclusive  that  it  was  a  gift,  though  title  to  the  land  was  taken  by  her  in  her 
own  name  :  Yesler  v.  Hochstettler,  30  Pac.  Rep.  398.  In  New  Jersey  she  may 
take  a  mortgage  on  liis  lands  through  the  intervention  of  a  third  person:  Stoy 
V.  Stoy,  41  N.  J.  Eq.  370. 

^  Burton  u  Pierpoint,  2  P.  Wms.  78;  Jervoise  v.  Jervoise,  17  Bev.  566;  Grant 
V.  Grant,  34  L.  J.  Ch.  641  ;  Williams  v.  Mercier,  9  Q.  B.  Div.  337;  Macqueen's 
H.  &  W.  115  ;  Sianning  v.  Style,  3  P.  Wms.  333. 

^Carpenter  v.  Franklin,  89  Tenn.  142.  Even  as  against  his  then  existing  cred- 
itors he  may  make  the  gift :  Trcsch  w. Wirtz,  34  N.  J.  Eq.  124  ;  afErmed  36  N.  J. 
Eq.  356  ;  Peterson  v.  Mulford,  36  N.  J.  L,  481.  Contra,  Cramer  v.  Reford,  17  N. 
J.  Eq.  367.  Although  a  wife  deliver  back  a  deed-gift  of  lands  to  her  husband, 
the  lien  of  a  judgment  against  her  at  the  time  will  attach:  Craig  t^.  Monitor 
Plow  Works,  76  la.  577. 

In  Mnssachusetts  the  power  of  a  husband  oi-  wife  to  make  gifts  to  each  other 
is  limited  to  a  certain  amount  and  of  certain  property  :   Pub.  Stat.,   1882,  p.  819, 


Donor  and  Donee.  51 

bb.  Wife  as  Donor. — Whether  or  not  a  Avife's  gift  of 
her  personal  property  to  a  person  not  her  husband  is  valid 
depends  upon  the  law  of  the  place  without  reference  to 
her  domicile/  If  the  common  law  there  })revail3  in  its 
full  vigor,  then  she  cannot  make  a  gift  without  her  hus- 
band's consent ;  and  this  is  true  of  her  donatio  moi^tis 
causa,  which  is  put  upon  the  same  footing  with  her 
will.^  In  all  such  instances,  his  consent  may  be  inferred 
from  circumstances ;  and  whether  such  inference  is  to 
be  made  is  ordinarily  a  question  of  fact  for  the  jury.^ 
But  she  may  make  a  valid  gift  direct  to  her  husband, 
and  his  acceptance  is  his  assent  that  it  may  be  made ;  and 

sect.  3;  Spelman  v.  Aldricli,  126  Mass.  113;  Araer  v.  Chew,  5  Met.  320; 
Thompson  v.  O'rfullivan,  6  Allen,  303;  G:iy  v.  Kingsley,  11  Allen,  345  ;  Adams  v. 
Brackett,  5  Met.  280;  Marshall  v.  Jaquiih,  134  Mass.  138  ;  Carley  v.  Green,  12 
Al'en,  104;  Baxter  d.  Knowles,  12  Allen,  114;  Edgerly  v.  Whalan,  106  Mass. 
307 ;  Phelps  v.  Phelps,  20  Pick.  0.36. 

1  Emery  v.  Clough,  63  N.  H.  552. 

-  Jones  V.  Brown,  34  N.  H.  439.  "  During  the  life  of  the  husband,  it  is  not 
settled  by  decisions,  that  we  aie  aware  of,  how  far  the  powers  of  the  wife  extends 
in  giving  away  or  dispoi^ing  of  her  property.  It  would  seem  a  reasonable  rule 
that  when  the  husband  has  failed  to  reduce  the  property  to  his  possession,  from 
inability  as  firom  its  situation,  or  from  want  of  time,  no  assent  of  the  husband 
could  be  procured,  and  the  wife  would  have  no  power  to  give  away  the  property. 
But  when  the  wife  has  continued  to  retain  the  control  and  management  of  her  prop- 
erty by  the  assent  of  the  Imsband,  then  her  sale  of  the  property  inter  vivos  might 
be  effectual.  On  this  principle  her  donatio  causa  mortis  might  be  good  in  such  a 
case,  unless  the  rules  applicable  to  legacies  should  be  held  to  apply.  .  .  .  But  a 
donatio  causa  mortis  is  of  the  nature  of  a  legacy.  It  becomes  a  valid  gift  only 
upon  the  decease  of  the  donee.  Now  a  married  woman,  by  her  husband's  assent,  may 
bequeath  by  will  personal  property  in  possession  which  belonged  to  her  at  her 
marriage,  or  which  had  fallen  to  her  afterward  :  Cutter  v.  Butler,  5  Fost.  (N.  H.) 
355.  A  general  assent  that  a  wife  may  make  a  will,  is  hardly  sufficient.  There 
must  ordinarily  be  evidence  of  an  assent  to  the  particular  will  which  is  made  by 
the  wife.  The  assent  may  be  proved  by  circumstances  as  well  as  by  direct  proof. 
Thus,  if,  after  the  wife's  death,  the  husband  suffer  the  will  to  be  proved,  and  de- 
liver the  goods  accordingly,  the  testament  is  good.  If  tliese  principles  are  ap- 
plicable, as  we  think  they  are,  to  the  case  (^f  a  donatio  causa  mortis,  the  lui?-b:ind 
in  tills  case  wnuld  be  bound  by  the  gift,  by  his  wife,  of  the  things  which  he  saw 
divided:"  Jones  r.  Brown,  supra;  Russ  i'.  George,  45  N.  H.  467;  Fettiplace  v. 
Gorges,  1  Ves.  Jr.  46;  S.  C.  3  Bro.  C.  C.  8. 

^  Russ  V.  George,  45  N.  H.  467. 


52  Gifts. 

it  is  valid  unless  she  can  prove  fraud,  duress,  or  the  like 
on  his  part.^  To  sustain  such  a  gift  the  husband  must 
produce  cogent  evidence  of  her  intention  to  make  it.'^ 
But  if  the  law  of  the  place  where  the  gift  is  made  gives  a 
married  woman  the  control  over  and  right  of  disposal  of 
her  personal  property,  free  from  her  husband's  control — 
as  many  of  the  married  woman's  property  acts  do — then 
she  may  give  away  such  property  as  freely  as  if  she 
were  a  feme  sole,  and  she  may,  no  doubt,  make  of  it  a 
donatio  mortis  causa,  for  her  husband's  consent  is  not  es- 
sential to  its  transfer  or  the  validity  of  the  gift."  So  she 
may,  without  his  consent,  even  though  no  enabling  statute 
is  in  force,  make  a  valid  gift,  mortis  causa  even,  of  her 
separate  personal  property.* 

1  Lynn  n  Ashton,  1  R.  &  M.  188;  Essex  r.  Atkins,  14  Ves.  542 ;  Smyley  v. 
Eeese,  53  Ala.  89;  Black  v.  Black,  30  N.  J.  Eq.  215  ;  In  re  Jones,  6  Biss.  68  ; 
Lishey  v.  Lishey,  2  Tenn.  Ch.  5. 

2  Rich  V.  Cockell,  9  Ves.  369  ;  Rieper  v.  Rieper,  79  Mo.  352  ;  Stiles  v.  Stiles,  14 
Mich.  72;  Witbeck  v.  Witbeck,  25  Mich.  439;  Smith  v.  Osborn,  33  Mich.  410; 
Hooker  v.  Axford,  33  Mich.  453  ;  Hoxie  v.  Price,  31  Wis.  82. 

^Kilby  V.  Godwin,  2  Del.  Ch.  61. 

*Kilby  ('.  Goodwin,  2  Del.  Cii.  61.  That  a  married  woman  may  make  a  gift  of 
her  jiroperty  to  lier  husband,  s( e,  also,  Duifee  v.  McCiurg,  G  Mich.  223  ;  Wales 
V.  Newbould,  9  Mich.  45  ;  Penniman  v.  Perce,  9  Mich.  509 ;  Golding  v.  GoJding,  82 
Ky.  51  ;  Farmer  v.  Farmer,  39  N.  J.  Eq.  211  ;  Black  v.  Black,  30  N.  J.  Eq.  215  ; 
Stevens  v.  Stevens,  2  Hun,  470  ;  Little  v.  Willetts,  37  How.  Pr.  481.  He  has  the 
burden  of  showing  a  valid  gift ;  and  the  fact  that  a  deed  of  land  was  made  to  him, 
having  been  purchased  with  her  money,  in  the  absence  of  proof  that  it  was  so 
made  by  her  direction,  consent,  or  knowledge,  i,s  no  evidence  of  a  gift,  and  war- 
rants no  presumption  against  her  interest :  AVales?;.  Newiionld,  ^^j^-a.  Proof  of 
mere  use  by  the  husband  does  not  establish  the  gift:  "Whiter  Zane,  10  Mich. 
333.  But  if  she  permit  it  to  become  so  mingled  with  his  that  it  cannot  be  dis- 
tinguislied,  it  is  a  relinquishment  to  him  so  far  as  his  creditors  are  concerned  : 
Glover  v.  Alcott,  11  Mich.  470;  Carew  v.  Mathews,  49  Mich.  302  ;  Zinn  v.  Law, 
32  W^.  Va.  447.  But  a  wife  who  contributes  money  for  the  purchase  of  land,  and 
allows  a  deed  for  it  to  be  taken  in  his  name,  she  not  insisting  upon  any  agree- 
ment that  the  land  was  hers,  will,  after  his  death,  be  conclude  d  from  insisting 
that  the  land  is  lier  own  :  Campbell  v.  Campbell,  21  Mich.  43S.  But,  see,  Le- 
land  V.  Walker,  23  Mich.  324,  as  to  securities  taken  in  his  name  A  wife  who 
purchased  furniture  with  her  separate  estate  and  put-'  it  in  the  husband's  posses- 
sion made  therelv  a  gift  of  it  so  far  as  his  crtditors  were  concerned:  Shirley  v. 


Donor  and  Donee.  53 

5^.  Wife  as  Donee  of  Thied  Persons. — Previous  to 
the  enactment  of  the  usual  married  woman's  property 
acts,  a  wife  coukl  not  take  a  gift  from  a  donor  who  was 
not  her  husband  unless  the  latter  assented  to  it.  Such  a 
gift  vested  the  title  to  the  property  in  her  husband  by 
reason  of  his  marital  rights,  and  consequently  he  had  the 
right  to  say  whether  he  would  be  the  recipient  of  a  gift. 
So  his  consent  was  necessary,  although  the  property  was 
expressly  given  for  the  sole  and  separate  use  of  the  wife, 
independent  of  his  control ;  but  if  so  given  such  property 
was  beyond  his  or  her  creditors'  control.^ 

57.  Foreigner  as  a  Donee. — In  Louisiana,  when  the 
civil  law  was  in  force,  it  was  decided  that  a  resident  and 
native  of  France  could  take  a  gift  mortis  causa,  the  laws 
of  that  country  allowing  an  American  to  take  such  a  gift 

Shirley,  9  Paige  Ch.  363,  previous  to  the  passage  of  an  act  enabling  her  to  hold 
her  property  free  from  his  right  to  reduce  her  property  to  liis  possession  ;  but 
after  the  passage  of  such  a  law,  such  conduct  on  her  part  is  not  a  gift :  Fitch  v. 
Eathbun,  61  N.  Y.  679. 

A  husband  who  receives  money  belonging  to  his  wife  receives  it  as  her  agent, 
and  upon  the  presumption  thus  raised  she  may  recover  it.  If  she  expend  it  on 
his  lands  or  for  his  use  or  benefit,  without  any  agreement,  it  will  be  regarded  a 
gift.  If  she  expend  It  on  liis  1  nds,  independent  of  any  agreement  or  promise,  for 
the  purpose  of  securing  herself  a  home,  and  he  drives  her  from  his  house,  equity 
will  give  her  relief;  otherwise  if  she  desert  him:  Black  v.  Black,  30  N.  J.  Eq. 
215  ;  Grantliam  v.  Grantham,  34  S.  C.  504. 

A  husband  is  entitled  to  his  wife's  service  in  the  family  :  Black  v.  Black,  supra. 
In  some  States  she  may  make  a  conveyance  of  land  directly  to  him  :  Allen  v. 
Hooper,  50  Me.  371,  but  this  cannot  be  done  without  an  enabling  statute  :  Kinna- 
man  v.  Pyle,  44  Ind.  275  ;  Luntz  v.  Greve,  102  Ind.  173  ;  Hunt  v.  Johnson.  44  N. 
Y.  27 ;  S.  C.  4  Am.  Rep.  631.  In  Missouri  a  parol  gift  by  a  husband  to  his  wife 
is  void:  McGuire  v.  Allen,  IS  S.  W.  Rep.  282. 

A  husband  on  leaving  the  State  executed  a  valid  bill  of  sale  for  all  his  per- 
sonal property;  and  his  wife,  fir  a  valuable  consideration,  obtained  possession  of 
this  bill  of  sale,  whereupon  he  returned  and  took  possession  of  the  property.  It 
was  held  that  she  had  not  given  him  the  property  described  in  the  bill  of  sale  : 
Paul  V.  Jennings,  23  Atl.  Rep.  483. 

1  In  Matter  of  Grant,  2  Story,  312 ;  S.  C.  5  L.  Rep.  11 ;  Jarry  v.  Trust  and  Loan 
Co.,  1 1  L.  Can.  Rep.  7. 


54  Gifts. 

from  a  native  and  inhabitant  of  France.^  But  in  another 
case  the  court  seems  to  have  been  of  opinion  that,  even 
though  a  native  of  this  country  could  not  take  a  gift  in  a 
foreign  country,  yet  a  native  and  inhabitant  of  tliat 
country  was  not  for  that  reason  incapacitated  from  taking 
a  gift  in  this  country.^  There  is,  however,  nothing  in  the 
common  law  which  prevents  a  foreigner  from  being  a 
donee  of  personal  property ;  but  in  nearly  all  countries 
where  the  common  law  prevails  a  foreigner  cannot  be  the 
donee  or  grantee  of  real  estate. 

58.  Legislature  as  Donor. — Unless  restrained  by  the 
Constitution,  the  Legislature  of  a  State  may  make  a  gift 
of  the  property  of  the  State,  either  to  an  individual  or  to 
a  corporation.^ 

59.  Slave  as  Donee. — Under  several  laws  of  the 
Southern  States,  a  slave  could  not  be  the  donee  of  prop- 
erty, for  the  property  of  a  slave  belonged  to  his  master ;  * 
but  this  did  not  i^revent  him  from  receiving  a  gift  of  his 
own  liberty.^ 

60.  Lunatic  as  Donor. — A  lunatic  can  no  more  make 
a  gift  of  his  property  than  he  can  sell  it;  but  just  as  he 

^  Succession  of  Mager,  12  Rob.  -584. 

''Duke  of  Richmond  v.  Milne,  17  La.  312. 

^  Yosemite  Stage,  etc.,  Co.  v.  Dunn,  83  Cal.  264.  The  case  involved  the  validity 
of  a  right  of  way  through  the  Yosemite  Valley  Reservation.  Pay  for  extra 
services  performed  by  porters,  pages,  watchmen,  and  doorkeepers  of  a  Legislature, 
rendered  during  a  session  of  the  Legislature,  is  a  gift  within  the  prohibition  of 
the  Constitution  of  California:  Robinson  v.  Dunn,  77  Cal.  473.  So  the  Legisla- 
ture cannot  make  a  gift  to  a  person  injured  in  the  service  of  the  State  :  Bouin  r. 
Hart,  93  Cal.  321.  But  if  services  rendered  a  State  are  valid  the  court  cannot 
hear  evidence  that  an  appropriation  to  pay  fur  them  was  in  fact  a  gift :  Stevenson 
t;.  Colgan.  91  Cal.  649.  What  is  not  a  gift  in  violation  of  the  Constitution  of 
South  Dakota:  see  Cutting  v.  Taylor,  51  N.  W.  Rep.  949. 

*Valsain  v.  Cloutier,  3  La.  176;  Cole  v.  Lucas,  2  La.  Ann.  946;  Lange  v. 
Richoux,  6  La.  560;  Blakely  v.  Tisdale,  14  Rich.  Eq.  90. 

^  Prudence  v.  Bermodi,  1  La.  240;  Pauline  r.  Hubert,  14  La.  Ann.  161 ;  Maver- 
ick V.  Stokes,  2  Bay  (S,  C),  511. 


Donor  and  Donee,  55 

may  make  a  sale  of  it  or  will  of  it  in  a  lucid  interval, 
so  he  may  make  a  gift  of  it ;  and  the  person  attacking 
the  validity  of  his  gift  upon  the  ground  of  his  insanity 
has  the  burden  of  showing  his  incapacity  to  make  the 

gift.' 

61.  One  of  Two  or  More  Donees  Incapable  of 
Taking. — If  one  of  two  or  more  donees  is  incapable  of 
taking  the  gift,  the  other  takes  the  whole ;  and  so,  if  land 
be  given  to  a  father  and  son  and  there  be  no  son,  it  is  said 
that  the  father  takes  it  all.^ 

62.  Administrator  or  Executor  of  Donor. — The 
administrator  or  executor  of  a  donor  may  take  a  gift  from 
his  decedent  the  same  as  any  other  person.  In  such  an 
instance,  however,  he  is  called  upon  to  make  clear  proof 
of  the  gift ;  for  his  possession  is  presumed  to  have  been 
derived  from  his  donor  as  his  personal  representative 
and  not  in  his  own  right.^ 

63.  Donor's  Gift  to  His  Illegitimate  Children  or 
Mistress. — In  some  of  the  Southern  States,  statutes  were 
enacted  forbidding  gifts,  in  whole  or  in  part,  from  the 
donor  to  his  mistress  or  to  his  illegitimate  children.  The 
construction  usually  placed  upon  these  statutes  was  that 
the  gifts  were  void  only  at  the  election  of  the  donor's  wife 
and  legitimate  children,  and  if  they  failed  to  avoid  it  the 
next  of  kin  of  the  donor  could  not  do  so.^ 

64.  Dead  Person — Donee  in  Ventre  sa  Mere. — 
A  gift  cannot   be  made  to  a  dead    person,  not  even   a 

^  Hebert  v.  Winn,  24  La.  Ann.  385 ;  Vandor  v.  Roach,  73  Cal.  614 ;  Bedell  v. 
Carll,  33  N.  Y.  581.     See  Case  IX,  Jenkins,  108,  109. 

^Shelly's  Case,  1  Coke  Rep.,  p.  101,  citing  17  E.  3,  fol.  29,  ed.  18,  E.  I.  59. 

3  Estate  of  Corson,  137  Pa.  St.  160;  Estate  of  Stewart,  137  Pa.  St.  175. 

*Ford  V.  McElray.  1  Rich.  Eq.  474;  Breithaupt  v.  Bauskett,  1  Rich.  Eq.  465; 
Taylor  v.  McRa,  3  Rich.  Eq.  96  ;  King  i'.  Johnson,  2  Hill  Ch.  624  ;  Hull  v.  Hull, 
2  Strobh.  Eq.  174. 


56  Gifts. 

winding  sheet  for  his  body ;  for  a  dead  person  has  no 
power  to  accept  it/  Nor  can  one  be  made  to  an  unborn 
infant.^ 

Qb.  Private  Corporation. — Tlie  funds  and  property 
of  private  corporations  constitute  a  trust  fund  for  the 
benefit  of  the  stockholders,  and  any  disposal  of  them  in 
violation  of  that  trust  is  illegal  and  may  be  avoided. 
Therefore,  a  gift  of  the  funds  of  the  corporation  by  the 
directors  is  a  direct  violation  of  the  trust  unless  the  char- 
ter of  the  corporation  authorizes  the  disposition  of  such 
funds  in  that  way.^  Nor  can  the  directors  condone  a 
misapplication  of  the  corj)orate  funds  ;  *  nor  can  a  majority 
of  the  stockholders  authorize  a  donation  of  the  property 
of  the  corporation  to  another  corporation,  in  which  new 
corporation  such  majority  of  stockholders  are  also  stock- 
holders.^ So  a  stockholder  may  enjoin  a  railroad  offering 
to  donate  its  funds  to  an  exhibition  which  it  is  claimed 
will  increase  the  corporate  receipts  if  established.^  So 
back  pay,  not  agreed  uj^on  at  the  time  he  accepted  the 
office,  and  which  was  not  an  inducement  to  his  acceptance, 
cannot  be  given  to  an  officer  of  a  corporation.'^     When- 

^  Hay  lie's  Case,  12  Coke  Rep.  113. 

^Da[)ree  v.  Dupree,  Btisb.  Eq.  164. 

^  Frankfort  Bank  v.  Johnson,  24  Me.  490 ;  AVardens,  etc.,  St.  James'  Church 
V.  Rector,  etc.,  45  Barb.  35G;  Salem  Bank  v.  Gloucester  Bank,  17  Mass.  1 ;  Jones 
V.  Morrison,  31  Minn.  140;   Minor  v.  Mechanics'  Bank,  1  Pet.  46,  71. 

*  Minor  v.  Mechanics'  Bank,  1  Pet.  46,  71. 

*  Polar  Star  Lodge  v.  Polar  Star  Lodge,  16  La.  Ann.  53. 

®  Torapkinson  v.  South,  etc.,  Ry.,  35  Ch.  Div.  635.  But  see  State  Board  of  Agri- 
culture V.  Citizens'  St.  Ry.,  47  Ind.  407,  where  such  a  subscription  was  enforced. 

'American,  etc.,  Ry.  Co.  v.  Miles,  52  III.  174;  Merrick  v.  Peru  Coal  Co., 
61  111.472;  Holland  t*.  Lewiston,  etc..  Bank,  52  Me.  564;  Bennett  v.  St.  Louis, 
etc.,  Co.,  19  Mo.  App.  349  ;  Barrill  v.  Calendar,  etc.,  Co.,  50  Hiin,  257  ;  Ogden  v. 
Murray,  39  N.  Y.  202;  Blatchford  v.  Ross,  5  Abb.  Pr.  N.  S.  434;  Commonwealth 
Ins.  Co.  V.  Crane,  6  Met.  64 ;  Jones  i'.  Morrison,  31  Minn.  140 ;  Kilpatrick  v.  Pen- 
rose, etc.,  Co.,  49  Pa.  St.  118 ;  Maux,  etc.,  Co.  v.  Branegan,  40  Ind.  3()1 ;  Smith  ?•. 
Woodville,  etc.,  Co.,  66  Cal.  398;  Holder  v.  Lafayette,  etc.,  Ry.  Co.,  71  111.  106; 
Citizens'  Nat.  Bank  v.  Elliott,  55  la.  104;  Loan  Asso.  i'.  Stonemetz,  29  Pa.  St.  534; 


Donor  and  Donee.  57 

ever  an  agent  or  officer  of  a  corporation  accepts  a  gift  to 
unduly  influence  his  action  in  corporate  matters,  the  cor- 
poration is  entitled  to  it  or  its  proceeds  and  may  maintain 
an  action  for  that  purpose/  So,  if  a  cor^^oration  is  formed 
for  the  purpose  of  purchasing  a  patent  and  using  it  in 
manufacturing  articles  or  the  like,  and  the  promoters  of 
such  corporation  elect  their  friends  directors,  and  give 
them  money  or  stock  of  the  corj)oration  in  compensation 
therefor,  the  gift  is  void  ;  and  such  directors  must  account 
for  the  money  received,  or,  on  winding  up  the  company, 
pay  for  the  stock  at  the  highest  figure  it  reached  between 
the  time  w^hen  the  gift  Avas  made  and  when  the  corporation 
is  wound  uj).^ 

6G.  Gift  to  Officer  of  Corporation  to  Unduly  In- 
fluence His  Action. — An  officer  of  a  corporation  can- 
not secretly  accept  a  gift  the  acceptance  of  which  is  con- 
ditioned upon  his  binding  the  corporation  to  do  or  not  to 
do  a  particular  thing.  Such  an  action  on  his  j)art  is  a 
betrayal  of  his  trust ;  and  he  may  be  compelled  to  account 
to  the  corporation  either  for  the  gift  or  its  value.     Thus 

Illinois  Co.  v.  Hough,  91  111.  63;  Gridley  v.  Lafayette,  etc.,  Ey.  Co.,  71  111.  200; 
Hulton  V.  West,  etc.,  Ry.  Co.,  L.  R.  23  Ch.  Div.  654 ;  Northeastern  Ry.  Co.  r.  Jack- 
son, 19  W.  R.  198  ;  New  York,  etc.,  Co.  v.  Ketchum,  27  Conn.  170  ;  Lafayette,  etc., 
Co.  V.  Cheeney,  87  111.  446.  But  the  grant  of  an  annuity  to  a  disabled  clerk  has 
heen  upheld :  Clarke  v.  Imperial,  etc.,  Co.,  4  B.  &  Ad.  315 ;  so  a  gift  to  a  deceased 
superintendent  of  a  bank:   Henderson  v.  Bank,  59  L.  J.  ((  h.)  794. 

^  Tyrrell  v.  Bank  of  London,  10  H.  L.  26  ;  General  Exchange  Bank  v.  Horner, 
39  L.  J.  (Ch.)  393 ;  In  re  St.ipleford,  49  L.  J.  (Ch.)  253 ;  Boston,  etc.,  Co.  v.  Ansell, 
59  L.  J.  Re}).  345  ;  Sheriddn  v.  Sheridan,  etc.,  Co.,  38  Hun,  396 ;  Imperial,  etc., 
Asso.  V.  Coleman,  L.  R.  6  App.  Cas.  189;  Bank  of  London  v.  Tyrrell,  5  Jur.  (N. 
S.)  924;  Jacobus  v.  Munn,  37  N.  J.  Eq.  48. 

2  Pearson's  Case,  L.  R.  5  Ch.  Div.  336;  25  W.  R.  618;  affinuing  S.  C.  4  Ch. 
Div.  2-22;  Metcalf's  Case,  L.  R.  13  Ch.  Div.  109;  Leeke's  Case,  L.  R.  10  Cli. 
App.  469  ;  Ex  parte  Pelly,  L.  R.  21  Ch.  Div.  492 ;  De  Ruvigne's  Case,  L.  R.  5  Ch. 
Div.  306;  Hay's  Case,  L.  R.  10  Ch.  App.  593;  Oremerod's  Case,  25  W.  R.  705; 
McKay's  Case,  L.  R.  2  Ch.  Div.  1 ;  Weston's  Case,  L.  R.  10  Ch.  Div.  579  ;  Clarke's 
Case,  37  L.  J.  (N.  S.)  222. 


58  Gifts. 

if  a  director  receives  a  commission  from  a  person  obtain- 
ing a  loan  from  the  corporation  through  the  director's  in- 
fluence, the  latter  must  account  to  the  corporation  for  the 
amount  thus  received  by  him.^  So  where  the  director  of 
a  railway  receives  a  bonus  for  the  location  of  its  road  at  a 
certain  place."  So  for  bringing  about  a  consolidation  of 
two  corajDanies.^  So  where  a  director  of  an  insolvent  cor- 
j^oration  accepts  a  gift  for  secretly  reinsuring  the  com- 
pany's risks  in  a  certain  other  insurance  company.^  Nor 
can  a  corporation  make  a  present  to  one  of  its  retired  offi- 
cers, or  even  to  one  still  serving  it,  for  past  services.^ 

67.  CoKPORATiON  AS  DoNEE. — A  Corporation  may  be  a 
donee,  having  full  power  to  accept  any  gift  not  foreign 
to  the  object  of  its  incorporation  ;  ^  but  it  cannot  claim  the 
benefit  of  a  gift  made  before  it  was  incorporated  where 
the  donor  die  before  its  organization.'^ 

68.  Municipal  Corpoeation  as  Donor. — A  muni- 
cipal corporation,  unless  expressly  authorized  by  its  charter 
or  a  statute,  cannot  make  a  donation  of  its  property,  money 
or  bonds.^  Thus  a  borough  council  cannot  use  the  corporate 

^  Farmers,  etc.,  Bank  v.  Downey,  53  Cal.  466 ;  Imperial,  etc.,  Assn.  v.  Coleman, 
L.  R  G  H.  L.  189. 

'^Bestor  v.  Wathen,  60  111.  13S;  Linder  v.  Carpenter,  62  111.  309;  Fuller  v. 
Dame,  18  Pick.  472;  Holladay  v.  Patterson,  5  Greg.  177. 

'Gaskell  V.  Chambers,  26  Beav.  ',lQ>y);  General  Exchange  Bank  v.  Homer,  39  L. 
J.  (Ch.)  393.  But  not  so  if  all  concerned  assented:  Soiithall  v.  British,  etc., 
Asso.,  L  R.  6  A  pp.  614. 

*  Bent  V.  Priest,  86  Mo.  475. 

5  Henderson  v.  Bank,  40  Ch.  Div.  170 ;  S.  C.  58  L.  J.  Cii.  197  ;  59  L.  J.  856 ;  37 
W.  R.  332  ;  Ellis  v.  Ward,  25  N.  E.  Rep.  530  ;  Beers  v.  New  York  Life  Ins.  Co., 
20  N.  Y.  Supp.  788. 

^  Williams  v.  Western  Star  Lodge,  38  La.  Ann.  620  ;  De  Camp  r.  Dobbins,  31 
N.  J.  Eq  671  ;  Cruse  v.  Axtell,  50  Ind.  49;  Baker  r.  Clark  Inst.,  110  Mass.  88  ; 
Miller  V.  Chittenden,  2  la.  315;  Vansant  ?■.  Roberts,  3  Md.  119. 

'Succession  of  Hardesty,  22  La.  Ann.  3.')2. 

8Bissell  V.  City  of  Kankakee,  64  111.  2J0  ;  English  r.  People,  96  111.  566; 
Mather  v.  City  of  Ottawa,  114  111.  659;  Tash  v.  Adams,  10  Cush.  252  ;  Hood  v. 
Lynn,  1  Allen,  103;  Gerry  v.  Stoneham,  1  Allen,  319. 


Donor  and  Donee.  59 

funds  for  the  purchase  of  a  gold  chain  to  present  the  re- 
tiring mayor/  So  a  municipal  corporation  cannot,  with- 
out a  statute  authorizing  it,  make  a  donation  of  the  cor- 
jDorate  funds  for  the  purpose  of  providing  a  Fourth  of  July 
celebration  for  the  inhabitants  of  such  municipality,  even 
though  such  practice  has  been  followed  for  years.^  But  a 
corporation,  when  authorized  by  statute,  may  donate  money 
or  bonds  to  hire  volunteers  in  defense  of  the  county 
against  a  rebellion  to  enable  it  to  fill  its  quota  of  men 
under  the  calls  of  the  President  for  troops,  and  thereby 
avoid  an  anticipated  draft.^  It  cannot  make  such  a  dona- 
tion without  a  statute  expressly  authorizing  it ;  *  but  if  it 
do  its  acts  may  be  ratified  by  the  Legislature  and  rendered 
legal.^ 

69.  Municipal  Corporations  as  Donee. — If  there  is 
no  statute  prohibiting  it,  a  municipal  corporation  may 
take  and  accept  a  gift,  whether  made  orally,  by  deed  or 
by  devise,  the  same  as  an  individual.^  Thus  a  gift  of 
money  for  repairing  the  highways  of  a  town  is  valid ;  '^  so 

1  Attorney-General  v.  Batley,  2G  L.  J.  (N.  S.)  392. 

"  Hood  V.  Lynn,  1  Allen,  103. 

'Speert'.  School  Directors,  50  Pa.  St.  loO;  Hilbish  r.  Catherman,  64  Pa.  St. 
154 ;  State  v.  Richland  Twp.,  20  Ohio  St.  362  ;  Thompson  v.  Pittson,  59  Me.  545 ; 
Broadhead  v  Milwaukee,  19  Wis.  (324  ;  State  i-.  Tappan,  29  Wis.  664;  S.  C.  9 
Am.  Rep.  622  ;  Sperry  v.  Horr,  32  la.  184 ;  Booth  v.  Woodbury,  32  Conn.  118 ; 
Shackford  v.  Newington,  46  N.  II.  415;  Lowell  v.  Oliver,  8  Allen,  247;  Freeland 
V.  Hastings,  10  Allen,  570;  Comer  r.  Folsom,  13  Minn.  219;  Dayton  v.  Rounds, 
27  Mich.  82;  Veagie  v.  China,  50  Me.  518  ;  Clark  Co.  v.  Lawrence,  63  111.  32,  40; 
Bowles  V.  Landaff,  59  N.  H.  164;  Gould  v.  Raymond,  59  N.  H  260. 

*  Stetson  V.  Kempton,  13  Mass.  272;  Fiske  v.  Hazzard,  7  R.  I.  438 ;  Shackford 
V.  Newington,  46  N.  H.  415. 

^  Booth  V.  Woodbury,  32  Conn.  118  ;  Knnkle  v.  Franklin,  13  Minn.  127  ;  Comer 
V.  Folsom,  13  Minn.  219;  Hibish  r.  Catherman,  64  Pa.  St.  154. 

«  Sargent  v.  Cornish,  54  N.  H.  18  ;  Chambers  v.  St.  Louis,  29  Mo.  543;  Town 
of  Haraden  v.  Rice,  24  Conn.  350 ;  Perin  v.  Carey,  24  How.  465  ;  Worcester  v. 
Eaton,  13  Mass.  371  ;  Downing  v.  Marshall,  23  N.  Y.  366  ;  Sutton  v.  Cole,  3  Pick. 
232;  Fox's  Will,  52  N.  Y.  530;  S.  C.  94  U.  S.  315;  American  Bible  Society  v. 
Marshall,  15  Ohio  St.  537. 

■f  Town  of  Hamden  v.  Rice,  24  Conn.  350. 


60  Gifis. 

for  bridges  ;  ^  to  build  a  town  hall ;  ^  of  a  sum  of  money, 
the  income  of  which  to  be  expended  in  the  purchase  of 
United  States  flags  for  display  on  all  proper  occasions  ;  ^ 
for  the  maintenance  of  schools  ;  ^  for  the  education  of  the 
poor  ;^  for  a  school-house ;  ^  for  a  court-house  and  jail ;  ^ 
for  a  public  common ;  ^  and  for  prospecting  for  and  devel- 
oping a  coal  mine  near  it.'' 

'  James  v.  Allen,  3  Meriv.  16  ;  Kelley  v.  Kennard,  60  N.  H.  1. 

2  Coggeshall  v.  Pelton,  7  John.  Ch.  292 ;  French  v.  Quincy,  3  Allen,  9. 

^  Sargent  v.  Cornish,  54  N.  H.  18. 

*  Sutton,  First  Parish  of,  v.  Cole,  3  Pick.  232  ;   Dunbar  v.  Soule,  129  Mass.  284. 

"McDonogh  Will  Case,  15  How.  367  ;  Le  Couteaulx  v.  Buffalo,  33  N.  Y.  333. 

^Castleton  v.  Langdon,  19  Vt.  210. 

'  Jackson  v.  Pike,  9  Cow.  69. 

8  State  V.  Atkinson,  24  Vt.  448. 

^Delaney  r.  Salina,  34  Kan.  532.  Inasmuch  as  a  gift  to  a  municipal  corpora- 
tion to  be  held  in  trust  for  a  specified  purpose  is  not,  in  fact,  a  gift  to  the  corpo- 
ration, we  omit  a  discussion,  referring  the  reader  to  Dillon's  Munc.  Corp.,  sects. 
566  to  574  (4tli  ed.).     Such  transactions  are,  in  fact,  contracts. 


CHAPTER  IV. 

INTENTION    AND    PROMISE. 

70.  Intent  Essential  to  Validity  of  Gift.  70.  Gift  Inter  Vivos  to  Take  Effect  in 

71.  Expression  of  Intent.  tlie  Future. 

72.  Mere  Intention  to  Make  a  Gift.  77.  Gift  of  Property  Not  Yet  Owned 

73.  Concealed  Intention.  by  Donor. 

74.  Promise  to  Make  a  Gift.  78.  Gift   Inter  Vivos   to  Take   Effect 

75.  Intention   to   Give   Must  be    Clear  After  Death  of  Donor. 

—Proof 

70.  Intent  Essential  to  Validity  of  Gift. — An 
intention  on  the  part  of  tlie  donor  to  make  the  gift  in 
question,  and  an  intent  on  the  part  of  the  donee  to  accept 
as  a  gift,  is  essential  to  its  validity.^  If  the  donor  had  no 
intent  to  make  a  gift,  or  if  the  donee  had  no  intention  to 
accept  the  thing  given  as  a  gift,  there  is  no  gift  executed  ; 
for  both  the  intent  to  give  and  an  intent  to  accept  are 
essentials  to  every  gift.  But  if  the  donor  has  no  intent 
to  give,  yet  the  donee,  not  aware  of  his  intentions,  and 
supposing  the  transaction  is  a  gift,  accepts  it  as  such,  the 
donor,  if  the  donee,  before  aware  of  the  actual  intent  of 
the  donor,  were  to  expend  money  and  labor,  or  either, 
upon  the  thing  given,  might  be  estopped  from  claiming 
the  transaction  was  not  a  gift,  if  ho  lias  been  negligent  in 
misleading  the  donee  into  the  belief  tliat  tlie  transaction 
was  only  a  gift ;  still  if  he  had  not  been  negligent  in  so 
misleading  him,  yet  knowingly  permitted  him  to  labor 
under  the  belief  that  it  was  a  gift,  he  would  be  estopped 
in  reclaiming  the  thing  given.  For  manifestly  to  allow 
the  donee  to  expend  money  or  labor  upon  the  article  he 
supposes  to  be  a  gift  to  him  would  be  inequitable   and 

1  See  Sections  79,  82. 

61 


62  Gifts. 

unjust ;  and  a  court  of  equity  would  not  tolerate  such  con- 
duct. Usually  the  intention  to  give  is  openly  expressed 
by  the  donor.  Most  men  desire  full  credit  from  the 
donee  for  the  favor  they  have  done  him ;  and  do  not 
hesitate  to  inform  him  that  they  are  then  making  him  a 
gift.  Such  expressions  of  intention  are  always  admissible 
as  a  part  of  the  res  gestae}  And  so,  as  has  been  elsewhere 
shown,^  prior  and  subsequent  declarations  by  the  donor, 
showinsr  his  intentions  are  admissible  in  evidence 
when  the  validity  of  the  gift  is  drawn  in  question.  The 
intent,  however,  may  follow  the  delivery ;  for,  as  has  been 
shown, ^  if  the  owner  of  a  chattel  deliver  it  to  another,  and 
afterward  inform  him  that  he  may  keep  it  as  a  gift,  and 
it  is  so  accepted  by  such  other  person,  there  is  a  good 
gift,  although  no  intent  to  make  a  gift  existed  at  the  time 
of  delivery.^ 

71.  Expression  of  Intention. — Loose  expressions  have 
been  used  with  reference  to  the  declaration  by  the  donor 
of  his  intent  to  make  the  gift ;  and  it  is  scarcely  believed 
that  the  authors  of  them  meant  the  full  force  of  the  mean- 
ing their  language  conveys.  Thus  it  is  common  to  say 
that  "  to  constitute  a  gift,  there  must  be  an  expression  of 
intention  to  make  a  gift."  ^  But  it  is  believed  that  such 
is  not  the  invariable  rule,  if  it  is  meant  thereby  that  there 

1  In  Matter  of  Ward,  2  Redf.  251  ;  Booth  v.  Cornell,  2  Redf.  261  ;  Fiero  r. 
Fiero,  5  T.  &  C.  151  ;  Reed  v.  Reed,  52  N.  Y.  651  ;  Bedell  v.  Carll,  33  N.  Y.  581 ; 
Shnttleworth  v.  Winter,  55  N.  Y.  624;  Irish  v.  Nutting  47  Barb.  370  ;  Stevens  v. 
Stevens,  2  Redf.  265  ;  Williams  v.  Guile,  117  N.  Y.  343.  affirming  46  Hun,  645 ; 
Hooper  v.  Goodwin,  1  Wils.  Ch.  212;  S.  C.  1  Swanst.  486. 

2  See  Sections  222,  223,  224. 
^See  Section  152. 

*See  Armitage  i'.  M;ice,  14  J.  &  S.  (N.  Y.)  550.  If  the  intent  to  give  is  doubt- 
ful, but  consistent  with  any  other  theory,  the  gift  is  void  :  Morse  v.  Meston,  152 
Mass.  5. 

5  Stevens  v.  Stevens,  2  Redf.  265,  277  ;  In  Matter  of  Ward,  2  Redf.  251.  See 
Section  236. 


Intention  and  Promise.  63 

must  be  a  verbal  expression  of  an  intent.  The  intention 
to  give  may  be  ascertained  or  may  be  made  apparent  or 
conveyed  to  the  donee  in  other  ways  than  by  the  use  of 
verbal  or  written  language.  A  look,  accompanying  the 
act  of  delivery,  may  be  sufficient ;  or  permitting  the  arti- 
cle to  remain  for  a  long  time  in  the  possession  of  the  do- 
nee, accompanied  by  a  failure  to  demand  possession  of  it, 
may  be  sufficient  when  accompanied  by  other  indicia  of  a 
gift.  In  all  instances  of  alleged  gifts  the  question  of  in- 
tention is  one  of  fact  for  the  jury,  or  the  court  when  the 
jury  is  waived.^  Thus  in  South  Carolina,  during  the 
period  of  slavery,  by  a  parent's  merely  putting  his 
daughter,  at  her  marriage,  in  possession  of  a  slave,  with- 
out reserving  the  right  to  reclaim  it,  or  otherwise  qualify- 
ing the  possession,  an  intention  to  give  was  presumed.^ 

72.  Mere  Intention  to  ^Iake  a  Gift. — While  an 
intention,  either  secretly  entertained  or  ojoenly  expressed, 
to  make  a  gift,  is  essential  to  its  validity,  yet  a  mere  in- 
tention is  not  of  itself  sufficient  to  make  a  valid  gift.^  "A 
declaration  of  an  intention  to  give  is  not  a  gift."  ■*  "  To 
make  a  complete  gift,  there  must  not  only  be  a  clear  in- 
tention, but  the  intention  must  be  executed,  and  carried 
into  effect."  ^  In  another  case  it  was  said  :  "  The  evi- 
dence establishes  only  a  clear  intention  to  relinquish  ;  the 
testator  meant  to  do  a  further  act ;  he  Avas  preparing  to 
do  it ;   it  was  not   done ;   the  court  cannot  supply  it."  ^ 

»  M'Cluney  v.  Lockhart,  4  McCord  (S.  C),  251. 

"^  Edings  V.  Wlialey,  1  Rich.  Eq.  (S.  C.)  301 ;  Morisev  r.  Bunting,  1  Dev.  L. 
(N.  C.)  3. 

^  Mnhan  v.  .Jane,  2  Bibb.  32  (intention  expressed  to  free  a  slave) ;  May  v.  Mav, 
36  111.  App.  77. 

*  Northrop  v.  Hale,  73  Me.  66 ;  Tomlinson  v.  Ellison,  104  Mo.  105  ;  Duncombe 
V.  Richards,  46  Mich.  1G6. 

^Cotteen  v.  Missing,  1  Madd.  Ch.  103;  Hooper  v.  Goodwin,  1  Swanst.  486. 

^Hooper  v.  Goodwin,  1  Swanst.  485;  Parish  r.  Stone,  14  Pick.  198;  Pope  r. 
Burlington  Savings  Bank,  56  Vt.  284;   S.  C.  48   Amer.  R.  781  ;  Board,  etc.,  t>. 


64  Gifts. 

This  rule  applies  both  to  a  gift  inter  vivos  and  mortis 
causa}  111  such  instances,  in  order  to  j)erfect  the  gift,  there 
must  be  a  delivery  by  the  donor  to  the  donee,  a  renunci- 
ation, expressly  or  impliedly,  by  him  of  all  dominion 
over  the  thing  given,  and  an  acceptance  by  the  donee.^ 
Nor  does  it  make  any  difference  in  the  rule  if  the  inten- 
tion is  reduced  to  writing.^ 

73.  Concealed  Intention. — The  donor's  intention  to 
make  a  gift  must  be  in  some  way  conveyed  to  the  donee, 
so  he  may  understandingly  accept  the  thing  tendered  as 
a  gift.  If  it  is  not  made  manifest  to  him,  there  is  no  gift. 
Thus,  if  A  make  a  claim  on  B,  and  B  delivers  his  promis- 
sory note  to  A,  and  by  his  words  or  acts  induces  A  rea- 
sonably to  understand  that  it  is  delivered  in  settlement 
of  the  claim,  it  is  no  defense  to  an  action  on  the  note  that 
B  secretly  intended  it  as  a  gift.* 

74.  Promise  to  Make  a  Gift. — So  a  promise,  unsup- 
ported by  a  valid  consideration,  to  make  a  gift  does  not 
constitute  a  gift ;  nor  can  such  a  promise  be  enforced,^ 
even  though  the  promise  be  made  in  writing,  and  the 
writing  delivered  to  and  accejDted  by  the  donee.°  This  rule 

Auditor-General,  68  Mich.  659;  "Williamsons.  Colcord,  1  flask.  620;  Hooper 
r.  Goodwin,  1  Wils.  Ch.  212;  S.  C.  1  Swanst.  486;  Brownlee  v.  Fen  wick,  103 
Mo.  420. 

1  Egerton  v.  Egerton,  2  C.  E.  Gr.  419. 

2  r,riuk  V.  Gould,  43  How.  Pr.  289  ;  Jackson  v.  Twenty-third  Street  Ry.  Co.,  88 
N.  Y.  520  ;  Bedell  v.  Carll,  33  N.  Y.  581 ;  Nolen  v.  Harden,  43  Ark.  307. 

^  Harmon  r.  James,  7  'nd.  263;  Cotteen  v.  Missing,  1  Madd.  Ch.  103. 

*Nye  V.  Chace,  L39  Mass.  379. 

^  Walker  v.  Crews.  73  Ala.  41 2  ;  May  r.  May,  36  111.  App.  77  ;  Doty  v.  "Willson, 
47  N.  Y.  580  ;  Hunter  v.  Hunter,  19  Barb.  631  ;  Williamson  v.  Colcord,  1  Hask. 
620 ;  Lee  v.  Luther,  3  Woodb.  &  M.  519  ;  Williams  v.  Barton,  13  La.  409  ;  Grice 
V.  Pearson,  7  La.  Ann.  94 ;  Bush  v.  Decuir,  11  La.  Ann.  503. 

^Mercer  v.  Mercer,  29  la.  557  ;  Sanilac  Co.  v.  Auditor-General,  68  Mich.  659. 
A  promise  to  a  minor  that  if  he  would  not  drink,  smoke,  or  play  cards  for  money, 
or  play  billiards,  until  he  is  twenty-one  years  of  age,  he,  the   promisor,  would 


Intention  and  Promise.  65 

applies  to  a  gift  mortis  causa^  even  though  death  take 
effect  so  soon  after  the  making  of  the  promise  as  to  prevent 
a  delivery.^  But  where  a  husband  and  wife  conveyed  lands 
of  the  former  to  a  third  person,  at  the  request  of  the  lat- 
ter, under  a  j)romise  of  the  grantee  to  pay  off  certain  liens 
on  the  premises,  and  then  convey  them  to  the  wife ;  and 
the  grantee  paid  off  the  liens,  such  payment  was  held 
to  constitute  an  executed  gift  to  the  wife,  and  not  a 
mere  promise  to  make  the  gift.^  A  2:)romise  to  give 
may,  however,  be  made  valid  by  a  devise  of  the  thing 
given.'* 

75.  I:s"TEjsrTiox  to  Give  Must  be  Clear — Proof. — In 
order  to  uphold  a  gift,  especially  one  mortis  causa,  the  in- 
tention to  make  it  must  be  clearly  shown — there  must  be 
"  a  clear  intention  to  give."  ^  UsUally  such  intention  is 
shown  by  proof  of  the  donor's  declarations,''  which  is 
treated  at  length  elsewhere.'^  So  the  relations  of  the 
donor  and  donee,  their  regard  for  each  other,  and  ex- 
pressions of  like  and  dislike,  love  and  aversion,  may 
be  proved  to  show  the  donor's  intent,  on  the  one  hand, 
or  to  rebut  the  claim  that  he  had  an  intention  to  give, 
on  the  otlier.^ 

give  a  certain  sum  on  that  day,  is  only  a  promise  to  give  and  not  binding: 
Hamer  v.  Sidway,  .57  Hun,  229 ;  Keyl  v.  Westerhaus,  42  Mo.  App.  49. 

1  Coxt).  Hill,  6  Md.  274,  284;  Fearing  v.  .Jones,  149  Mass.  12. 

2  Hooper  r.  Goodwin,  1  Wils.  Cli.  212;  S.  C.  1  Swanst.  486. 

3  White  V.  Cannon,  125  111.  412. 

*  Decker  v.  Waterman,  67  Barb.  460.  A  loan  of  money  at  the  highest  rate  of 
interest,  made  under  tlie  inducement  of  a  promise  by  the  borrower  that  he  will 
make  a  valuable  gift  of  personal  property  to  the  lender,  is  usurious:  Hendrick- 
son  V.  Godsey,  54  Ark.  155. 

M':gerton  v.  Egerton,  2  C.  E.  Gr.  419;  In  Matter  of  Ward,  2  Eedf.  251; 
Stevens  v.  Stevens,  2  Redf.  265;  Green  v.  Carlill,  4  Ch.  Div.  882;  S.  C.  46  L.  J. 
Ch.  477. 

6  Powell  V.  Olds,  9  Ala.  861 ;  Olds  v.  Powell,  7Ala.  652. 

^  See  Sections  222,  223,  224. 

«  Conner  v.  Root,  11  Colo.  183. 
5 


/ 


66  Gifts. 

76.  Gift  Intek  Vivos  Takes  Effect  in  the  Future. — 
A  gift  intei^  vivos  to  be  valid  must  take  effect  at  once/ 
and  there  must  be  nothing  to  be  done  essential  to  the 
validity ;  ^  for  if  it  is  to  take  effect  in  the  future,  there  is 
no  gift,  but  only  a  promise  to  give.^  So  a  gift  to  take 
effect  at  the  death  of  the  donor  is  void.*  Instructions 
by  the  donor  to  his  agent  or  administrator  to  deliver  uj) 
the  property  at  a  future  date,  or  after  his  death,  is  also 
ineffectual  to  make  a  valid  gift.^ 

77.  Gift  of  Peoperty  Not  Yet  Owned  by  the 
Donor. — A  donation  of  property  not  at  tlie  time  owned 
by  the  donor  is  a  nullity,  for  a  gift  can  only  be  of  present 
property.^  But  a  conditioned  vendee  may  make  a  gift  of 
the  jDroperty  purchased.'^  So  the  owner  of  an  animal 
may  give  it  by  deed  to  one  person  and  its  increase  there- 
after born  to  another.^ 

78.  Gift  Inter  Vivos  to  Take  Effect  After  Death 
of  Donor. — A  verbal  gift  to  take  effect  after  the  death 
of  the  donor,  unaccompanied  by  delivery,  and  not  to  be 
delivered  nor  to  be  the  property  of  the  donee  until  after 

^  McFarlane  v.  Flinn,  8  Nov.  Sco.  1G2 ;  Smith  v.  Dorsey,  38  Ind.  451  ;  Hynson 
V.  Terry,  1  Ark.  83 ;  Reed  v.  Spaulding,  42  N.  H.  114;  Payne  v.  Powell,  5  Bush. 
248;  Allen  v.  Polereczky,  31  Me.  338. 

2  Smith  V.  Dorsey,  38  Ind.  451 ;  Kidder  v.  Kidder,  33  Pa.  St.  268. 

^Spencer  v.  Vance,  57  Mo.  427  ;  Bennett  r.  Cook,  28  S.  C.  353;  Vogel  v.  Gast, 
20  Mo.  App.  104;  Roberts  v.  Draper,  18  Bradw.  167;  Dole  v.  Lincoln,  31  Me. 
422;  Campbell's  Estate,  7  Pa.  St.  100. 

*  Frost  V.  Frost,  33  Vt.  639. 

5  Campbell's  Estate,  7  Pa.  St.  100;  Kidder  v.  Kidder,  33  Pa.  St.  268;  Trough's 
Estate,  75  Pa.  St.  115;  Zimmerman  v.  Streeper,  75  Pa.  St.  147;  S.  C.  5  Leg. 
Gaz.  126. 

''Soileau  v.  Rougeau,  2  La.  Ann.  766;  Rliodes  r.  Rhodes,  10  La.  85. 

7  Hatch  V.  Lamos,  65  N.  H.  1. 

^  Banks  v.  Marksberry,  3  Litt.  275  (a  gift  of  a  woman  slave).  Where  a  condi- 
tional vendee  made  a  gift  of  land  and  then  paid  off  tlie  amount  he  owed  thereon, 
the  payment  was  held  to  be  for  the  benefit  of  the  donee,  and  could  not  be  recovered 
back  by  his  administrator:  Hatch  v.  Lamos,  65  N.  H.  1. 


Intention  and  Promise.  67 

the  donor's  death,  is  void  and  cannot  be  enforced.^  Yet 
if  the  gift  is  by  deed  and  the  deed  is  delivered  to  the 
donee,  the  gift  will  be  valid  ;  ^  but  an  instrument  in  wriV 
ing,  merely  expressing  an  intention  tp  make  a  gift  at- some 
time  in  the  future  during  the  lifetime  of  the  donor,  is  in- 
effectual, and  no  rights  can  be  acquired  under  it.^ 

*  BonnafFe  v.  Bonnaffe,  Mann.  (La.)  339 ;  Duncan  v.  Duncan,  5  Litt.  12 ;  Knott 
V.  Hogan,  4  Met.  (Ky.)  99. 

'  Banks  v.  Marksberry,  3  Litt.  275. 

'  Gammon  Theological  Seminary  v.  Kobbins,  128  Ind.  85. 


CHAPTER  V. 

ACCEPTANCE. 

79.  Acceptance  Essential.  85.  Acceptance   for   Donee   by  Third 

80.  Acceptance  Must  be  in  Lifetime  of  Person. 

Donor.  86.  Presumption    of     Acceptance    by 

81.  Acceptance  Must  be  Before  Kevoca-  Adult. 

tion.  87.  Acceptance  by  Minor. 

82.  Intelligent  Acceptance.  88.  When  Acceptance  Not  Presumed. 

83.  When  Acceptance  Unnecessary.  89.  Terms  of  Acceptance. 

84.  Acceptance  of  Donatio  Mortis  Causa.  90.  Evidence  of  Acceptance. 

91.  Effect  of  Disclaimer. 

79.  Acceptance  Essential. — Like  in  a  contract,  there 
must  be  two  persons  to  every  gift ;  for  an  acceptance  of 
the  thing  given  is  as  essential  as  the  acceptance  of  the 
terms  of  a  proposed  contract.^  "  To  complete  the  in  vest- 
ure of  title,"  said  the  Maryland  Court  of  Appeals,  "  there 
must  be  the  mutual  consent  and  concurrent  will  of  both 
donor  and  donee,  or  trustee  or  guardian  acting  for  the 
donee,  in  the  acceptance  of  the  gift."^ 

80.  Acceptance  Must  be  in  Lifetime  of  Donob. — 
The  acceptance  must  be  within  the  lifetime  of  the  donor ; 
it  cannot  be  made  after  his  death.^  But  where  the  donee 
was  handed  a  cloth  pocket,  such  as  ladies  then  habitually 

^  Peirce  v.  Burroughs,  58  N.  H.  302  ;  see  Section  254  ;  Branch  v.  Dawson,  36 
Minn.  193. 

2  Nickerson  r.  Nickerson,  28  Md.  327  ;  Taylor  v.  Henry,  48  Md.  550  ;  S.  C.  30 
Am.  Eep.  486  ;  Hitch  v.  D;ivis,  3  Md.  Ch.  266;  Thomas  v.  Tliomns,  107  Mo.  459; 
Hunter  V.  Hunter.  19  Barb.  631  ;  Thouvenin  v.  Eodrignes,  24  Tex.  468;  Fuselier 
V.  Masse,  4  La.  423.  There  is  no  difference  in  the  necessity  for  an  acceptance  at 
common  law  and  the  civil  law;  both  require  it:  De  Levillain  v.  Evans,  39  Cal. 
120. 

3  Helfenstein's  Est.,  77  Pa.  St.  328 ;  Phipps  v.  Jones,  20  Pa.  St.  260  ;  Love  v. 
Francis,  63  :Mich.  181;  Eskridge  r.  Farrar,  34  La.  Ann.  709. 

68 


Acceptance.  69 

carried,  by  the  donor,  who  said  :  "  Here  I  give  you  this ; 
I  make  you  a  present  of  it ;  I  have  another,  and  want  you 
to  wear  them,  they  are  so  very  handy,"  she  being  at  the 
time  in  full  health  ;  and  three  weeks  after  the  donor  died  ; 
and  the  donee,  on  opening  the  pocket,  found  therein  a 
pocketbook,  which  she  knew  was  there,  containing  six 
shares  of  stock,  which  she  did  not  know  was  there  until 
she  opened  the  pocketbook,  it  was  held  that  there  was  a 
valid  gift  of  the  stock.  But  it  must  be  observed  of  this 
case  that  the  point  was  not  made  that  there  was  no  know- 
ing acceptance  of  the  stock  until  after  the  donor's  death. 
The  validity  of  the  acceptance  seems  to  have  been  undis- 
puted, the  real  controversy  having  been  whether  the  donor 
intended  to  give  the  stock.^  A  third  person,  however, 
may  accept  the  gift  as  trustee  for  the  donee,  and  it  will 
be  valid,  although  the  latter  does  not  know  of  it  until 
after  the  donor's  death." 

81.  Acceptance  Must  be  Before  Bevocatiox. — The 
donee,  or  some  one  authorized  to  do  so  in  his  behalf, 
must  accept  the  gift  before  it  is  revoked  or  recalled  by 
the  donor ;  for  until  acceptance,  the  donor  has  full  power 
to  revoke  the  gift,  although  every  other  act  has  been  per- 
formed that  is  essential  to  make  a  perfect  gift.^ 

82.  Intelligent  Acceptance. — Not  only  must  there  be 
an  acceptance,  but  the  acce^^tance  must  be  made  with  an 
intelligent  assent.  The  acceptance  of  the  possession  of  the 
thing  given  is  strong  evidence  of  an  acceptance  of  the  gift, 
but  it  is  not  the  same  thing  as  an  acceptance,  no  conclu- 

^  Allerton  v.  Lang,  10  Bosw.  (N.  Y.)  362. 

'  Tate  V.  Leithead,  Kav,  658.   See  Standing  v.  Bowring,  L.  R.  31  Ch.  Div.  282. 

^  Love  V.  Francis,  63  Mich.  181.  The  statement  of  the  text,  however,  is  very 
doubtful  in  the  light  of  Standing  r.  Bowring,  L.  E.  31  Ch.  Div.  282.  This  subject 
is  renewed  under  the  Sections  with  respect  to  the  time  when  the  title  to  a  gift 
passes. 


70  Gifts. 

sive  evidence  of  it,  especially  if  the  gift  is  burdened  with 
conditions  requiring  a  j^erformance  of  some  act  or  the 
assumjDtion  of  some  obligation  on  the  part  of  the  donee.^ 

83.  When  Acceptance  Unnecessary. — When,  how- 
ever, the  acts  of  the  donor  are  such  as  to  raise  a  trust  and 
make  himself  a  trustee  for  the  donee,  an  acceptance  by 
the  latter  is  not  essential  to  the  validity  of  the  gift.^ 

84.  Acceptance  of  Donatio  Mortis  Causa. — In  the 
case  of  a  gift  mortis  causa,  although  the  gift  is  revocable 
at  any  time  before  death,  or  so  long  as  the  donor  possesses 
sufficient  intelligence  to  understand  his  act,  or  by  his  subse- 
quent recovery,  yet  the  donee  must  accept  the  gift  before 
the  donor's  death,  or  some  one  must  accept  it  in  his  behalf^ 

85.  Acceptance  for  Donee  by  Third  Persons. — The 
donee  is  not  required  to  accept  a  gift  in  person ;  he  may 
authorize  an  agent  to  accept  it ;  or  if  an  agent  without 
authority  accept  it,  he  may  afterward  ratify  it,  even  after 
the  donor's  death.'^  But  the  mere  fact  that  the  acceptor 
is  an  agent  of  the  donee  does  not  render  his  acceptance 
valid ;  for  he  has  no  authority,  from  the  mere  fact  of 
agency,  to  make  a  binding  acceptance.  Something  more 
must  be  shown,  either  that  he  had  authority  to  accept,  or 
else  his  act  was  ratified  by  the  donee  before  a  revocation 
by  the  donor.^  But  an  infant  cannot  ratify  the  acts  of 
an  unauthorized  agent  or  attorney.  He  cannot  empower 
him  to  act  for  him  ;  and  therefore  he  cannot  affirm  what 
he  has  assumed  to  do  for  him  in  his  name.*^ 

>  Higman  v.  Stewart,  38  Mich.  513 ;  Armitage  v.  Widoe,  3G  Mich.  124. 
^  Higman  v.  Stewart,  38  Micii.  513. 
3  Darland  v.  Taylor,  52  la,  503. 
*  Forbes  v.  Jason,  6  Bradw.  395. 

^Bush  V.  Decuir,  11  La.  Ann.  503;  Forbes  v.  Jason,  6  Bradw.  395;  Hunter  v. 
Hunter,  19  Barb.  631. 

^Armitage  v.  Widoe,  36  Mich.  124. 


Acceptance.  71 

86.  Presumption  of  Acceptance  by  Adult. — If  the 
gift  is  a  benefit  to  the  donee,  courts  will  presume  an  ac- 
ceptance by  him,  unless  the  facts  proved  show  the  con- 
trary.^ This  rule  rests  upon  another,  which  is  that  a  per- 
son is  presumed  to  do  what  it  is  his  interest  to  do,  and  not 
to  act  against  it."  Such  is  the  case  of  a  devise  of  an  estate, 
where  a  disclaimer  must  be  shown  in  order  to  defeat  the 
devise  ;  ^  or  a  conveyance  of  property.*  So  it  is  a  general 
rule  that  all  gifts  are  presumptively  beneficial,  and  it  is 
unnecessary  to  show  that  to  be  the  case  in  order  to  raise 
the  presumption  of  an  acceptance.^  The  law  even  goes  so 
far  as  to  raise  a  presumption  that  the  donee  had  knowl- 
edge of  the  gift ;  especially  is  that  the  case  where  the 
donor  exercised  no  authority  over  the  gift  after  the  act  of 
donation  is  completed  on  his  part.''  So  where  the  gift 
consisted  of  the  forgiving  of  a  part  of  the  debt,  by  an  in- 
dorsement on  the  note  and  mortgage  a  receipt  of  payment 
of  the  part  given,  it  was  presumed  that  the  donee  had  ac- 
cepted the  gift,  and  evidence  of  acceptance  deemed  unnec- 
essary.'^ So  where  the  holder  of  a  note  executed  by  her 
grandson,  destroyed  it,  and  afterward  stated  that  she  ex- 
pected to  live  but  a  short  time  and  in  the  event  of  her 
death  she  did  not  desire  him  to  be  obliged  to  pay  it,  it 
it  was  held  that  such  acts  constituted  a  completed  and 

1  Guard  v.  Bradley,  7  Ind.  600;  Stewart  v.  Weed,  11  Ind.  92  ;  Goss  v.  Singleton, 
2  Head.  67. 

"^  Creps  V.  Baird,  3  Ohio  St.  277 ;  Clawson  v.  Eichbaum,  2  Grant.  Cas.  130 ; 
Higman  v.  Stewart,  38  Mich.  513. 

»Tovvnson  i'.  Tickell,  3  B.  &  Aid.  31 ;  Thompson  &  Leacli's  Case,  2  Salk.  618. 

*  Bensley  v.  Atwill,  12  Cal.  231 ;  Lidy  Superier  v.  McNaraara,  3  Barb.  Cli.  375 ; 
S.  C.  49  Am.  Dec.  184;  Peavey  v.  Tilton,  18  N.  H.  151 ;  S.  C  45  Am.  Dec.  365  ; 
Merrills  v.  Swift,  IS  Conn.  257  ;  S.  C.  46  Am.  Dec.  315  ;  MaUory  v.  Stodder,  6  Ala. 
801;  Mitcliell  v.  Ryan,  3  Ohio  St.  377 ;  Barns  v.  Hatch,  3  N.  H.  304;  Renfor  v. 
Harrison,  10  Mo.  411. 

5  Goss  I'.  Singleton,  2  Head.  67;  Child  r.  Child,  5  N.  Y.  Wkly.  Dig.  16;  De 
Levillain  v.  Evans,  39  Cal.  120. 

^  Howard  v.  Savings  Bank,  40  Vt.  597. 

'Green  v.  Langdon,  28  Mich.  221. 


72  Gifts. 

valid  gift  to  the  grandson,  mortis  causa,  of  the  amount  of 
the  note,  and  his  acceptance  would  be  presumed/ 

87.  Acceptance  by  Minor. — In  the  case  of  a  gift  to  a 
minor  the  law  does  not  presume  an  acceptance  so  readily 
as  if  he  were  an  adult.  If  it  is  made  to  appear  that  the 
gift  is  for  his  advantage,  the  law  accepts  it  for  him  and 
Yv-ill  hold  the  donor  bound  ;  but  if  it  is  not  for  his  advan- 
tage, the  law  will  repudiate  it  at  his  instance,  even  though 
lie  may  in  terms  have  accepted  it.^  No  formal  acceptance 
on  the  part  of  the  minor  is  necessary ;  and  the  gift  is  a 
good  one  even  though  the  minor  has  no  knowledge  of  it.^ 

88.  When  Acceptance  not  Presumed. — But  there 
are  many  instances  in  which  the  presumption  of  an  ac- 
ceptance of  a  gift  will  not  be  presumed.  These  are  where 
the  acceptance  imposes  a  burden  upon  the  donee,  or  will 
work  him  an  injury,  and  it  may  be  said  that  they  are  in- 
stances of  contracts  rather  than  of  gifts.  This  is  especially 
true  of  gifts  to  infants.  Thus  to  an  infant  was  executed 
a  contract  for  the  purchase  of  a  tract  of  land  at  the 
price  of  |1 3,000,  and  upon  which  only  $400  had  been 
paid,  it  was  held  that  there  was  no  presumption  of  an  ac- 
ceptance ;  and  it  was  said  that  the  same  rule  would  pre- 
vail if  the  donee  were  an  adult ;  for  an  acceptance  involved 
the  assuming  of  an  obligation  to  pay  large  sums  of  money, 

1  Darland  v.  Taylor,  52  la.  503. 

^Section  254.  DeLevillian  ?•.  Evans,  39  Cal.  120;  Donner  v.  Palmer,  31  Cal. 
500 ;  Dow  V.  Gould  &  Cuiry  Silver  Mining  Co.,  31  Cal.  629. 

=*  Pruitt  V.  Pniitt,  91  Ind.  595  ;  Rinker  v.  Einker,  20  Ind.  185  ;  Wyble  v.  Mcl'he- 
ters,  52  Ind.  393;  Baker  v.  Williams,  34  Ind.  547  ;  Williams  v.  Walton,  8  Yerg. 
387;  S.  C.  29  Am.  Dec.  122;  Minor  v.  Rogers,  40  Conn.  512;  S.  C.  16  Am.  Rep. 
69;  Keingon  v.  Rautigam,  43  Conn.  17  ;  Gardner  v.  Merritt,  32  Md.  78 ;  Howard 
V.  Copley,  10  La.  Ann.  504  ;  Jndd  v.  Esty,  6  Low.  Can.  12.  The  Spanish  law  is 
the  same:  Pierce  v.  Giays,  5  Mart.  (La.)  370;  Fnselier  v.  Maspe,  4  La.  423; 
Diiplessia  v.  Kennedy,  6  La.  231  (in  this  case  it  was  held  that  a  minor  might 
accept,  although  he  had  a  guardian}. 


Acceptance.  73 

and  there  could  be  no  presumption  that  any  one  would 
voluntarily  assume  such  a  burden.^  But  where  a  mother 
conveyed  a  tract  of  land  to  her  five-year-old  son,  upon 
the  ex23ress  condition  that  he  pay  to  his  brother  or  the 
other  donee  on  his  arriving  at  full  age,  $300,  the  court 
held  that  a  presumjDtion  of  acceptance  was  raised  by  the 
mere  proof  of  the  gift.  The  value  of  the  laud  given, 
however,  does  not  aj^pear,'^ 

89.  Terms  of  Acceptance. — The  gift,  to  be  valid, 
must  be  accepted  by  the  donee  upon  the  exact  terms  in 
Avhich  it  is  tendered.  If  it  is  an  absolute  and  unconditional 
gift,  the  acceptance  must  be  absolute  and  unconditional,  or 
the  donor  must  a2:ree  to  the  modification  of  the  terms  made 
by  the  donee  ;  if  the  gift  is  conditional,  then  the  donee 
must  accept  and  become  bound  by  the  terms  of  the  condi- 
tion. In  these  respects  there  is  no  difference  between  a 
gift  and  a  contract.^ 


& 


90.  Evidence  of  Acceptance. — An  acceptance  may  be 
shown  by  the  language  used  by  the  donee,  by  his  taking 
the  instrument  given  or  tendered  into  his  jDossession  ;  or, 
if  the  delivery  is  to  a  third  person,  by  his  subsequent  de- 
mand for  its  possession,  or  efforts  to  obtain  possession, 
even  after  the  gift  has  come  into  the  hands  of  the  donor's 
personal  representatives.'^  So  the  production  of  a  bond, 
allesred  to  have  been  o'iven,  bv  the  donee  in  court,  wdien 
suit  has  been  instituted  upon  it  by  him,^  or  the  commence- 
ment of  a  suit  concerning  the  thing  given,*^  or  a  claim  to 
the  right  to  hold  possession  of  the  thing  given,  is  sufficient 

^  Arraitage  v.  Widoe,  3G  Mich.  124  ;  Ezell  v.  Giles  Co.,  3  Head.  583. 

^Pruitt  V.  Pniitt,  91  Ind.  595. 

3  Armitage  v.  Widoe,  36  Midi.  124. 

*  Hunter  v.  Hunter,  19  Barb.  631. 

*  ]\IcLean  v.  State,  8  Heisk.  22. 
^Mallettr.  Page,  8  Ind.  364. 


74  Gifts. 

evidence  of  an  acceptance.^     In  Canada  the  registration 
of  the  deed  of  gift,  by  the  donee,  is  an  acceptance  of  the 

91 .  Effect  of  Disclaimee. — A  disclaimer  operates  as 
evidence  that  an  acceptance  was  never  made ;  and  if 
an  acceptance  was  never  made,  the  property  remains 
in  the  donor.  This  is  even  true  of  a  gift  in  trust  for  a 
third  person.  The  law  does  not  force  the  donee  to  ac- 
cept the  gift,  whether  made  in  trust  or  otherwise ;  and  it 
is  therefore  competent  for  the  person  appointed  trustee  to 
refuse  both  the  gift  and  the  office  attached  to  it,  before  he 
has  done  any  act  to  deprive  himself  of  the  right  to  make 
the  disclaimer  or  refusal.  If  the  gift  is  of  an  estate,  by 
will  or  by  deed,  there  is  some  conflict  of  authority  whether 
the  disclaimer  may  be  by  deed  or  parol ;  but  there  is  no 
doubt  that  the  renunciation  may  be  by  deed,  by  matter  of 
record,  or  by  any  written  instrument,  or  by  an  answer  in 
court,  especially  in  chancery.^  The  effect  of  the  refusal 
or  disclaimer  is  that  the  trust  will  relate  back,  and  be 
held  to  have  been  made  at  the  time  of  the  gift,  if  no  act 
has  been  done  to  preclude  the  party  ;  and  all  parties  are 
j)laced  precisely  in  the  same  situation  relative  to  the  trust 
property  as  if  the  disclaiming  party  had  not  been  named 
in  the  trust  instrument ;  and  if  a  devise  in  trust  is  dis- 
claimed by  the  trustee,  the  legal  title  will  vest  in  the  heirs 
of  the  devisor.  But  in  such  an  instance  the  donee  may 
apply  to  a  court  of  chancery  to  have  a  trustee  appointed  ; 
and  the  effect  of  the  appointment  is  to  divest  the  heir, 
who,  by  the  former  renunciation,  has  become  a  cestui  que 
trust  of  the  legal  estate.^ 

'  Thouvenin  v.  Eedrigues,  24  Tex.  468  ;  Poirier  v.  Lacroix,  6  Low.  Can.  Jur.  302. 
2  Charlebois  v.  Caliill,  20  Low.  Can.  Jur.  27  ;  Judd  v.  Esty,  6  Low.  Can.  Kep.  12  ; 
Dupuis  V.  Cedillot,  10  Low.  Can.  Jur.  338. 
^  Tharpe  v.  Duiilap,  4  Pleisk.  674. 
*Goss  V.  Singleton,  2  Head.  67. 


CHAPTER  VI. 

CONDITIONAL    GIFT. 

92.  PaPol  Condition — Contingent  Gift.        96.  Gift  Over  if  Donee  Die  Without 

93.  Reservation  of  Riglit  to  Use  Gift  in  Heirs. 

Certain  Contingency.  97.  Donatio  Mortis  Causa. 

94.  Gift  Conditioned  to   Pay  Part  of  it     98.  Gift  Conditioned  on  Marriage. 

to  Tliird  Person.  99.  Donee  Takes  Gift  With  Condition 

95.  Gift  Conditioned  that   Donee   have  Annexed — Estoppel. 

Children  Born.  100.  Performance  of  Condition. 

92.  Parol  Condition — Contingent  Gift. — There 
can  be  usually  no  condition  or  limitation  to  a  parol 
gift ;  ^  such  a  gift  is  void,  and  not  the  condition.  For  by 
annexing  a  condition  to  the  gift  there  is  no  gift  in  prce,- 
sentl,  and  the  donor  may  revoke  it.  The  gift  is  not  ab- 
solute. But  suppose  the  gift  is  made,  conditioned  to  take 
effect  upon  the  donee  performing  the  condition.  If  the 
donor  delivers  the  thing  given  to  the  donee,  and  the  lat- 
ter performs  the  condition,  although  the  gift  is  a  jDarol 
one,  yet  upon  performance  the  gift  becomes  a  vested  one 
and  is  irrevocable.  Tims  a  husband  said  to  a  wife,  "  if  you 
like  to  learn  upon  it,  I  will  give  you  this  piano."  She 
learned  to  play  upon  it,  and  at  his  death,  although  the 
piano  remained  in  their  common  residence,  it  was  held 
that  she  was  entitled  to  the  instrument.^  Suppose,  how- 
ever, the  condition  is  not  that  the  donee  shall  do  some- 
thing sjDCcified  (and  the  performance  of  such  a  condition 
usually  turns  the  gift  into  a  contract,  or  rather  the  trans- 
action is  a  contract),  but  that  the  gift  shall  become  vested 
on  the  happening  of  a  certain  event  over  which  neither 

»  Hynson  v.  Terry,  1  Ark.  83 ;  Fitzhugh  v.  Beale,  4  Munf.  186. 
^  Whittaker  v.  Whittaker,  21  L.  R.  Ch.  Div.  657 ;  S.  C.  51  L.  J.  Ch.  Div.  737 ; 
46  L.  T.  (N.  S.)  802 ;  30  W.  R.  787. 

75 


76  Gifts. 

the  donor  nor  the  donee  have  any  control.  If  the  trans- 
action is  simj^ly  a  promise  to  make  a  gift  on  the  liappen- 
ing  of  such  an  event,  it  is  very  clear  that  there  is  no  valid 
gift — only  a  promise  to  make  one ;  but  if  the  thing  is 
handed  over  to  the  donee  Ly  the  donor,  conditioned  to 
become  vested  on  the  happening  of  such  event,  then  the 
happening  of  the  event,  accomj^anied  by  the  donor's  ac- 
quiescence in  the  donee's  retention  of  the  possession  of  the 
article  given,  will  justify  the  court  in  holding  or  the  jury 
in  finding  that  the  gift  had  become  perfected  and  the 
title  to  the  property  vested  in  the  donee  ;  and  there  is  no 
reason  why  the  gift  should  not  be  deemed  perfected  as 
soon  as  the  event  has  happened,  although,  up  to  that  time, 
the  donor  could  revoke  it ;  yet  the  cases  seem  to  be 
against  this  suggestion.^  But  where  some  time  has  elapsed 
between  the  occurrence  of  the  event  upon  which  the  gift 
is  made  contingent  and  the  controversy  over  the  validity 
of  the  transaction  as  a  gift,  the  court  or  jury,  where  the 
donor  has  taken  no  steps  to  annul  or  revoke  the  gift,  nor 
expressed  or  made  manifest  any  intention  to  recall  it,  is 
justified  in  reaching  the  conclusion  that  he  has  ratified  all 
that  preceded  the  controversy,  and  thus  confirmed  the 
gift.  Of  course,  if  he  had  by  word  of  mouth  or  written 
language  confirmed  it,  there  could  be  no  controversy  over 
its  validity.  But  a  marked  distinction  is  apparent  be- 
tween a  gift  conditioned  that  if  a  certain  event  hap23ened 
the  donor  might  recover  the  j)roperty,  or  rather  that  it 
should  revert  to  him  or  the  gift  be  deemed  annulled 
and  a  conditional  gift.     Such  a  transaction  is  not  a  gift.^ 

1  Smith  r.  Dorsey,  38  Ind.  451 ;  Irish  v.  Nutting,  47  Barb.  370 ;  Bedell  v.  Carll, 
33  N.  Y.  581  ;  Dexheimer  v.  Gaiitier,  34  How.  Pr.  472. 

^  Smith  r.  Dorsey,  38  Ind.  451.  "Where  the  evidence  showed  that  the  donor 
told  the  donee,  after  the  delivery  to  the  latter  of  certain  couijons  for  collection 
and  on  the  eve  of  the  former's  departure  for  a  distant  city,  to  take  the  coupons 
and  remit  the  proceeds  to  the  donor  as  they  became  due  if  the  donor  lived, 
but  if  he  never  came  back,  to  keep  them  in  part  payment  of  services  already  ren- 


Conditional  Gift.  77 

93.  E,ESERVATio?ir  OF  Right  to  Use  Gift  iisr  a  Cer- 
tain CoNTixGENCY. — A  reservation  of  the  right  to  use 
the  thing  given  upon  the  happening  of  a  certain  condi- 
tion does  not  invalidate  the  gift.  Thus  the  owner  of  a 
skive  gave  hini  upon  the  condition  subsequent  that  she 
shoukl  have  the  right  to  borrow  him  if  she  shoukl  again 
take  up  housekeeping,  or  to  receive  something  like  hire 
if  she  should  stand  in  need  of  his  work  ;  and  this  was  held 
not  to  avoid  the  gift.  "  It  imposed,"  said  the  court,  "  on 
the  donee  an  obligation  which  the  donee  was  bound  to 
fulfill ;  and  the  subsequent  payment  of  hire,  so  far  from 
avoiding  the  gift,  was  the  performance  of  the  condition, 
upon  which  it  was  made,  and  operated  to  perfect  it,  if  any 
thing  was  wanting."  ^  So  where  a  creditor  took  the  obliga- 
tion of  his  debtor,  payable  to  himself  upon  the  condition 
that  he  call  for  it  before  his  decease,  and  if  he  did  not  so 
call,  then  payment  thereof  to  be  made  to  a  third  person, 
it  was  held  that  this  was  a  valid  gift,  it  appearing  that 
the  creditor  adopted  this  method  to  secure  himself  if  he 
should  need  any  part  of  the  fund  for  his  j)ersonal  use." 

94.  Gift  Conditioned  to  Pay  Part  of  it  to  Third 
Persons. — If  A  make  a  gift  to  B  of  a  certain  sum  of  V 
money,  upon  the  condition  that  B  pay  a  part  of  the 
money  to  C,  the  remaining  part  in  B's  hands  is  still  a 
gift ;  the  transaction  is  not  a  contract.  So  if  A  give  B 
notes  he  holds  on  third  persons,  upon  condition  that  B 
collect  them  and  pay  a  part  thereof  to  C,  whom  A  owed, 

the  transaction  is  still  a  gift  as  between  A  and  B,^  though 

derecl  by  the  donee  to  the  donor  ;  it  was  held  that  tlie  jury  were  warranted  in 
finding  a  present  conditional  gift  to  the  donee,  which  would  conf  r  upon  him  a 
good  title  to  such  coupons  as  were  not  due  at  the  donor's  death  :  Tyndale  v. 
Randall,  154  Mass.  103. 

1  M'Kane  v.  Bonner,  1  Bail.  L.  S.  C.  113. 

2  Blanchard  v.  Sheldon.  43  Vt.  512. 

^  Riegel  v.  Wooley,  81*  Pa.  St.  227.     A   right  reserved  in  the  <leed  of  gift  to 
designate  a  beneficary  is  valid:  Lines  v.  Lines,  142  Pa.  St.  149. 


78  Gifts. 

no  doubt  it  is  a  contract  between  B  and  C,  especially  after 
B  has  collected  the  money  due  on  the  note,  or  enough  to 
2")ay  C  in  whole  or  in  j)art ;  and  equally  so  a  contract  be- 
tween A  and  B  after  the  latter  has  collected  the  money .^ 
So  where  A  gave  lottery  tickets  to  her  servants,  on  con- 
dition if  any  of  them  drew  a  prize  of  £20  or  more,  they 
should  give  one-half  to  her  daughter ;  and  the  ticket 
given  to  the  foot-boy  drew  a  prize  of  £1,000 ;  on  a  bill 
by  the  daughter,  a  moiety  of  the  £1,000  was  decreed  to 
her.^ 

95.  Gift  Conditioned  that  Donee  have  Childeen 
Born. — A  parol  gift,  however,  upon  the  condition  that 
the  donee  have  children  born  to  him  thereafter  is  valid ; 
but  if  it  is  a  gift  that  shall  be  transmitted  to  the  donee's 
descendants,  as  long  as  there  shall  be  such,  and  to  secure  a 
return  of  the  gift  to  the  donor  upon  a  failure  of  descend- 
ants, whenever  the  event  shall  occur,  then  the  gift  is 
void.^ 

96.  Gift  Over  if  Donee  "  Die  Without  Heirs." — 
A  gift  to  A,  even  by  deed,  of  a  chattel  upon  condition 
that  if  he  "die  without  heirs"  the  projDcrty  shall  go  to  B, 
is  void ;  for  the  gift  is  an  entire  disposition  of  the  chattel, 
and  the  limitation  over,  being  to  take  effect  after  such 
disposition,  is  void,^  Beferring  to  the  two  cases  cited, 
the  same  court  explained  them  by  saying :  "  There  are 

»  Swihart  v.  Shaiim,  24  Ohio  St.  432. 

^  Scot  V.  Haughton,2  Vern.  560.  A  sum  of  money  paid  by  A  to  B,  for  the  pur- 
pose of  pnrcliasing  C  a  promotion  in  the  army,  remained  unapplied  in  the  hands 
of  B  at  the  death  of  A.  C  having  been  compelled  by  his  bad  health  to  quit  the 
army,  and  having  no  prospect  of  being  able  to  enter  into  the  service  again,  it  was 
decreed  that  the  money  be  paid  to  C :  Leche  v.  Kilmorey,  Turn.  &  Euss.  207.  See 
Morris  v.  MacCullock,  2  Eden,  190  ;  S.  C.  Ambl.  432.  A  suggestion  that  money 
be  deposited  in  a  certain  way  is  advisory  and  not  a  condition  or  limitation  of  the 
gift :  Frazier  v.  Perkins,  62  N.  H.  69. 

3  Halbert  v.  Hnlbert,  21  Mo.  277. 

*  Wilson  V.  Cockrill,  8  Mo.  1 ;  Vaughn  v.  Guy,  17  Mo.  429. 


Conditional  Gift.  79 

two  grounds  upon  which  these  decisions  may  be  placed : 
one,  that  the  limitation  over,  being  upon  a  dying  without 
issue,  which  has  been  construed  to  mean  an  indefinite 
failure  of  issue — a  want  of  descendants  at  any  time,  sooner 
or  later,  whenever  it  should  occur,  and  not  a  want  of  them 
at  the  death  of  the  first  taker,  or  at  any  other  definite 
point  of  time — the  effect  of  it,  if  applied  to  real  property, 
would  have  been  to  create  an  estate  tail  by  necessary  im- 
plication ;  and,  therefore,  being  here  applied  to  personalty, 
carried  the  wdiole  interest,  according  to  the  rule  that  terms, 
which,  if  aj^plied  to  real  property,  would  give  an  estate 
tail,  passes  the  absolute  interest  in  personal  property,  and 
left  nothing  in  the  grantor  upon  which  the  limitations 
over  could  take  effect :  ^  and,  second,  that,  although  such 
future  interests  in  chattels,  if  limited  to  spring  up  within 
a  proper  period  of  time,  so  as  not  to  violate  the  rules 
against  perpetuities,  are  valid  at  law,  when  created  by 
will,  as  executory  bequests,  and  good  in  equity  as  equita- 
ble estates  through  declarations  of  trust,  yet  they  are  not 
allowed  at  common  law  in  the  disposition  of  personal 
chattels  by  conveyances  inter  vivos."  ^ 

97.  Donatio  Mortis  Causa. — But  conditions  are  not 
confined  to  gifts  inter  vivos ;  a  gift  causa  mortis  may  be 
conditional.  Thus,  where  A  gave  B  money,  with  direc- 
tions that,  if  he  died  from  his  then  sickness,  to  keep  it 
and  give  it  to  C  if  he  lived  to  be  of  age,  and,  if  he  did 
not,  to  divide  it  between  D  and  E,  it  was  held  that  this 
was  a  valid  gift.^  But  it  should  be  observed  of  this  that 
it  reallv  was  not  a  conditional  2;ift ;  it  was  an  absolute 
gift,  with  the  ultimate  donee  conditional. 

'  Citing  Anderson  v.  Jackson,  16  Johns.  381. 
''Halbert  v.  Halbert,  21  Mo.  277. 

^Clough  V.  Clough,  117  Ma.ss.  83;  Turner  t).  Boston  Five  Cents  Savings  Bank, 
129  Mass.  425  ;  S.  C.  37  Am.  Kep.  371, 


80  Gifts. 

98.  Gift  ox  Coxditiox  of  Marriage. — If  a  person 
making  his  addresses  in  view  of  marriage,  on  reasonable 
expectation  of  success  gives  presents,  and  the  lady  deceive 
him  afterward,  the  presents  must  be  returned,  or  the 
value  of  them  paid  ;  but  where  made  to  introduce  a 
person  only  to  a  Avoman's  acquaintance,  he  is  looked  upon 
in  the  light  of  an  adventurer,  and,  if  he  lose  by  the  at- 
tempt, must  take  it  for  his  pains,  especially  where  there 
is  a  disproportion  between  the  lady's  fortune  and  his 
own.^ 

99.  DoxEE  Takes  Gift  With  Coxdition  Axxexed — 
Estoppel. — A  donee,  if  he  takes  the  gift,  must  take  it 
Avitb  the  condition  annexed ;  and  although  he  is  ignorant 
of  the  condition  thereto  annexed.  So  wdiere  the  delivery  is 
to  an  agent  of  the  donor  with  instructions  to  deliver  it  over 
to  the  donee  on  the  happening  of  a  certain  event,  and  the 
agent  delivers  it  in  violation  of  his  instructions,  the  gift 
is  void  in  the  donee's  hands ;  but  if  the  donee,  in  the 
belief  that  his  title  is  good,  change  his  situation  and  ex- 
pend money  or  the  like  thereon,  then  the  donor,  by  his 
failure  to  repudiate  the  act  of  his  agent,  will  be  liable, 
like  a  grantor  for  value,  to  the  application  of  the  doctrine 
of  equitable  estoppel.^ 

100.  Performaxce  of  Coxditiox. — A  gift  made  upon 
the  express  condition  that  the  donee  perform  some  act, 
imposes  upon  him  the  duty  of  performing  it,  if  he  de- 
sire to  avail  himself  of  the  gift;  and  when  the  condition 
is  performed,  it  becomes  vested — in  fact,  it  becomes  a 
contract.^     The  person   purchasing  the  gift  from  the  do- 

1  Robinson  v.  Cuniming,  2  Atk.  409.     See  Section  117. 

^  Berry  v.  Berry,  31  la.  415.  The  maxim  Cerjus  est  dare,  ejus  est  dispnnere,  ap- 
plies to  gifts  to  which  a  condition  is  annexed :    In  re  Stevens,  S3  Cal.  322. 

3  Conkling  V.  Springfield,  39  111.  98  ;  De  Pontalha  v.  New  Orleans,  3  La.  Ann. 
660;  Diiclaud  v.  Rousseau,  2  La.  Ann.  16S ;  Eraser  v.  Dupres,  15  Low.  Can.  Jur. 
Ill  ;  Berry  v.  Berry,  31  la.  415. 


Conditiojial  Gift.  81 

nee,  with  notice  of  the  unperformed  condition,  must  per- 
form it  or  lose  his  property/  The  donor  may,  however, 
waive  the  condition  ;  and  such  waiver  may  be  evidenced 
only  by  conduct.  Thus  where  the  owner  of  property  gave 
it  away  on  the  condition  that  the  donee  support  the  do- 
nor, a  failure  on  the  part  of  the  latter  to  demand  support 
was  held  to  be  a  waiver  of  all  right  to  demand  that  all 
arrears  be  made  uj).' 

^  Lalonde  v.  St.  Denis,  3  Leg.  News,  415. 

''McGinn  v.  Brawders,  1  Low.  Can.  Jur.  176 ;  Chenier  v,  Coutlee,  7  Low.  Can. 
Jur.  291.  Conditions  against  alienation,  see  Cheval  v.  Morrin,  6  Low.  Can.  Jur. 
229;  Volois  v.  Gareau,  2  Eev.  Leg.  131.  Conditioned  to  use  ground  for  church 
edifice ;  removal  of  edifice  to  another  tract :  Kilpatrick  v.  Graves,  51  Miss.  432. 


CHAPTER  VII. 

CHANGING  GIFT  TO  CONTRACT. 

101.  Gift  Cannot  be  Changed  to  a  Charge.     103.  Gift  Changed  to  a  Trust. 

102.  Power  to  Sell  Not  Convertible  into     104.  Gift   Changed  to   An   Advance- 

Power  to  Give.  ment. 

101.  Gift  Cannot  be  Changed  to  a  Charge. — A 
gift,  being  an  executed  contract,  cannot  be  changed  to 
a  contract  unless  both  donor  and  donee  agree  to  the 
change.  It  would  be  manifestly  unfair  to  allow  a  person 
to  make  a  gift,  and  after  the  thing  given  was  accepted,  to 
change  it  to  a  charge  and  thus  compel  the  donee  to  pay 
for  something  he  possibly  never  would  have  purchased. 
Nor  would  there  be  a  consideration  in  such  an  event  to 
bind  the  donee ;  for  he  would  simply  be  purchasing  his 
own  goods.  The  agreement  would  be  a  nudum  jjactum. 
The  best  illustration  of  an  attempt  to  change  a  gift  to  a 
charge  is  the  case  of  charging  one,  who  has  been  a  mem- 
ber of  a  family,  for  his  support.  Thus  where  an  infant 
is  taken  and  brought  up  as  a  member  of  a  family,  with- 
out any  apparent  claim  or  expectation,  until  afterward,  of 
an  allowance  from  the  infant's  estate  for  such  support,  a 
claim  therefor  cannot  be  successfully  maintained  against 
his  estate,^  What  was  originally  intended  as  a  gratuity 
cannot  be  subsequently  changed  into  a  charge.^  A  very 
familiar  instance  of  this  kind  is  where  a  member  of  a 
family  renders  services  because  of  his  connection  with  it. 
In  all  such  instances  the  services  are  gratuitous  and  cannot 

»  Folger  V.  Heidel,  60  Mo.  284. 

2  Allen  r.  Richmond   College,  41   Mo.  302;   Whipple  v.   Dow,   2  Mass.  418; 
Maban  v.  United  States,  16  ^Va^.  143;  S.  C.  8  Ct.  of  CI.  137. 

82 


Changing  Gift  to  Contract.  83 

be  turned  into  a  claim  or  charge.^  So  if  the  work  is  done 
as  a  donation  it  cannot  be  changed  to  a  charge.^  And  as 
between  relations  the  presumption  of  a  contract  to  pay 
for  services  will  not  ordinarily  arise.^  So  where  one  as 
a  neighbor  and  relative  undertook  to  manage  the  moneyed 
affairs  of  an  old  lady,  without  any  stipulation  as  to  com- 
pensation, and  without  intending  to  make  a  charge,  it  was 
held  that  he  could  not  charge  her  estate  after  her  death 
for  his  services  ;  ^  and  the  same  rule  a2:>plies  to  one  serving 
a  stranger.^ 

102.  Power  to  Sell  Not  Conveetible  In^to  Power 
TO  Give. — It  is  self-evident  that  a  power  given  to  sell 
does  not  authorize  a  gift  of  the  thing  to  be  sold,  for  such 
powers  are  construed  strictly  and  must  be  strictly  followed.*^ 
So  a  power  to  give  cannot  be  considered  as  authorizing  a 
sale,  although  the  courts  would  undoubtedly  look  with 
more  leniency  upon  the  last  transaction  than  on  the 
former. 

103.  Gift  Changed  to  a  Trust. — A  gift  once  per- 
fected cannot  be  changed  by  the  donor,  without  the 
consent  of  the  donee,  into  a  trust;  nor  can  a  trust, 
without  the  consent  of  the  beneficiary,  be  changed  by  the 
grantor  into  a  gift.^ 

^  Harris  v.  Currier,  44  Vt.  468  ;  Taylor  v.  Taylor,  1  Lea,  83  ;  Bartholomew  v. 
Jackson,  20  Johns.  28  ;  Force  v.  Haines,  2  Harr.  (N.  J.)  385.  See  Article  in  20 
Cent  L.  Jour.,  p.  326. 

^  Wells  V.  Caldwell,  9  Humph.  609 ;  White  v.  Jones,  14  La.  Ann.  G81 ;  Little  v. 
Dawson,  4  Dall.  Ill ;  Davison  v.  Davison,  2  Beas.  (N.  J.)  246. 

^Taylor  v.  Taylor,  1  Lea,  83  ;  Harris  v.  Currier,  44  Vt.  468  ;  Hays  v.  ISIcCon- 
nell,  42  Ind.  285  ;  Hertzog  v.  Hertzo?,  29  Pa.  St.  465. 

*  Hill  V.  Williams,  6  Jones  Eq.  242. 

'"  Vestry,  etc  ,  v.  Barksdale,  1  Strobh.  Eq.  197. 

«  Dupont  v.  Wertheman,  10  Cal.  354.     See  Sellerk  v.  Selleck.  107  111.  389. 

"  Lemon  v.  Wright,  31  Geo.  317.  See  Marcy  v.  Aniazeeu,  61  N.  H.  131, 
134. 


84  Gifts, 

104.  Gift  Changed  to  an  Advancement. — An  abso- 
lute gift  to  a  child  of  the  donor  may  be  changed  into  an 
advancement,  with  the  consent  of  the  donee,  and  no  con- 
sideration for  the  change  is  essential ;  and  an  advancement 
may  be  changed,  by  consent,  into  an  absolute  gift,  and  it 
is  not  necessary  that  it  should  be  done  by  will.^  If  a 
parent  convey  property  to  his  child  as  an  advancement 
and  then  turn  it  into  a  gift,  he  may  not  turn  it  back  into 
an  advancement  without  the  child's  consent."^ 

>  Wallace  v.  Owen,  71  Geo.  544 ;  Harper  v.  Parks,  63  Geo.  705. 

2  Sherwood  v.  Smith,  23  Conn.  516;  Meeker  v.  Meeker,  16  Conn.  383.  The 
mere  declaration  of  the  parent  or  child  cannot  change  an  advancement  to  a  gift : 
Sweet  V.  Northrup,  12  AVk.  Dig.  377.    See  "Advancements." 


CHAPTER  VIII. 

REYOCATIOX. 

105.  Donor  Cannot  Revoke  a  Gift  inter     117.  Wedding  Presents,  Intended  Mar- 

Vivos.  riage  Broken  Off. 

106.  Revocation  of  Incomplete  Gift.  118.  Unintended  Gift — Mistake. 

107.  Minor  May  Revoke — Creditors.  119.  Immorality  Does  Not  Revoke. 

108.  Gift  for  Benefit  of  Third  Person.  120.  Change  of  Position  by  Donee  in 

109.  Estoppel  to  Deny.  .  View  of  Gift — Acquiescence. 

110.  Revocation  of  Trust.  121.  Gift  of  Real  Estate  by  Parol. 

111.  Reservation    of    Right   to   Revoke  122.  Redelivery. 

Gift.  123.  Donatio  Mortis  Causa. 

112.  Deed   of    Gift   Mortis  Causa   Can-     124.  Burden  to  Show  Non-Revocation 

celled.  in  a  Voluntary  Deed  of  Settle- 

113.  Fraud  or  Undue  Influence.  ment. 

114.  Revocation  of  Conditional  Gift.  125.  Revocation   Under   Spanish  and 

115.  Delivery  in  Escrow.  Mexican  Laws. 

116.  Revocation  by  Death.  126.  Revocation  by  Birth  of  Child. 

127.  Civil  and  French  Law. 

105.  Donor  Cannot  Revoke  a  Gift  Inter  Vivos. — 
Since  a  perfected  gift  is  an  executed  contract  in  the  law, 
it  can  no  more  be  revoked  by  the  donor  without  the  con- 
sent of  the  donee  than  if  there  was  a  valuable  considera- 
tion moving  from  the  latter  to  the  former ;  but  the  gift 
must  be  a  perfected  one — one  to  which  nothing  more  is 
essential  to  pass  the  title  to  the  donee.  "  It  has  been  held 
too  often  to  admit  of  doubt  or  discussion,"  said  the  Ken- 
tucky Court  of  Appeals,  "  that  an  executed  gift  or  gratuity 
cannot  be  revoked  by  the  donor,  no  matter  what  may  have 
been  the  condition  of  the  donee,  or  what  charities  he  shall 
receive,  or  property  acquire  in  the  future,  unless  the  dona- 
tion or  gratuity  were  the  result  of  fraud  or  mistake  in 
its  execution.  And  there  is  no  reason  why  an  executed 
gift  of  personal  property  shall  not  be  revoked  that  does 
not  sustain  the   irrevocability  of  gratuitous  labor,  care, 

85 


86  Gifts. 

board,  or  education  after  completion.  One  is  no  more 
the  executed  donation  of  value  than  the  other,  and  the 
same  principle  of  law  is  equally  applicable  to  both." 
Consequently,  where  an  institution,  organized  to  care  for 
and  maintain  orphan  children  until  their  maturity,  took 
a  child  to  rear  it,  and  after  the  child  had  fully  entered  the 
institution  it  drew  a  pension  from  the  government  by 
reason  of  the  fact  that  its  father  had  been  a  soldier  in  the 
army,  it  was  held  that  the  institution  could  not  revoke  its 
acceptance  of  the  child  and  that  it  was  not  entitled  to 
the  pension  money .^  So,  where  a*  father  bid  off  property 
at  an  administrator's  sale  in  his  own  name,  paid  for  it 
with  his  own  money,  and  had  the  deed  made  in  his  own 
and  his  child's  name,  it  was  held  that  he  could  not  in 
after  years  revoke  the  gift.^  In  another  case,  speaking 
of  a  gift  inter  vivos,  it  was  said :  "  It  seems  to  be  agreed 
on  all  hands  that  it  is  essential  to  every  gift  of  this 
class  that  it  should  be  irrevocable  by  the  donor;"  and 
there  are  many  cases  to  this  effect.^  The  gift  cannot 
be  invalidated.  If  a  gift  for  any  reason  is  void,  as,  for 
instance,  because  of  the  disabilities  of  the  donor  or  donee 

1  St.  Joseph's  Orphan  Society  v.  Wolpert,  80  Ky.  86 ;  S.  C.  3  Ky.  L.  ftep.  573. 

'■'Eckert  v.  Gridley,  104  111.  306;  White  r.  Cannon,  125  111.  412. 

•''Knott  V.  Plogan,  4  Met.  (Ky.)  99;  Duncan  v.  Duncan,  5  Liit.  12;  Walden  ?•. 
Dixon,  5  T.  B.  Mon.  170;  Brown  v.  Brown,  4  B.  Mon.  535 ;  Gault  v.  Trumbo, 
17  B.  Mon.  682;  McCloskey  v.  McCloskey,  29  La.  Ann.  237;  Dresser  z;.  Dresser, 
46  Me.  48;  Gardner  v.  Merritt,  32  Md.  78 ;  Allen  v.  Polereczky,  31  Me,  338; 
Smith  V.  Dorsey,  38  Ind.  451 ;  Esswein  v.  Seigling,  2  Hill  Ch.  (S.  C.)  600;  Hall 
V.  Howard,  Rice  (S.  C),  310;  Trowell  v.  Carraway,  10  Heisk,  104;  Woodson  v. 
Pearce,  5  Sneed,  415  ;  Sheegog  v.  Perkins,  4  Baxt.  273 ;  Henry  v.  Groves,  16  Gratt. 
244;  Mayo  V.  Carrington,  19Gratt.74;  Kelloggr.  Adams,  51  Wis.  138  ;  Gallaudet's 
Case,  9  Ct.  of  CI.  210 ;  Whiting  v.  Barrett.  7  Lans.  106  ;  Matthews  v.  Kentz,  2  Amer. 
L.  Rec.  371;  Greenfield's  Estate,  14  Pa.  St.  489;  Harris  t>.  Clark,  2  Barb.  94; 
affirmed,  3  N.  Y.  9  ? ;  Welsch  v.  Belleville  Savings  Bank,  94  111.  191;  Stone  v. 
Hackett,  12  Gray,  227  ;  Ryburn  v.  Pryor,  14  Ark.  505;  Garner  r.  Graves,  54  Ind. 
188;  Raymond  v.  Pritohard,  24  Ind  318;  Easly  v.  Dye,  14  Ala.  158;  L^fleur  r. 
Girard,  2  Low.  Can.  Jur.  90;  Poi.e  v.  Randoli)h,  13  Ala.  214;  Smith  v.  Smiili. 
7  C.  &,  P.  401 .  If  the  gift  is  by  deed,  tlie  donor  cannot  revoke  it  by  securing  p  .-,- 
sessinn  of  and  destroying  the  deed  :  Watts  v.  Starr,  86  Geo.  392. 


Revocation.  87 

to  make  and  receive  a  gift,  it  may  be  revoked  by  the 
donor.^  So  a  father  may  not  revoke  a  gift  made  to  his 
minor  son  unless  the  latter  consent ;  ^  nor  can  a  donor 
revoke  a  gift  by  a  subsequent  devise  of  the  thing  given,^ 
nor  revoke  it  in  his  will.'^  Even  a  voluntary  settlement 
cannot  be  revoked.^ 

106.  Revocation  of  Incompleted  Gift. — So  long, 
however,  as  the  gift  remains  incompleted — so  long  as 
something  remains  to  be  done,  either  by  the  donor  or 
donee,  to  complete  the  transaction — the  donor  may  re- 
voke the  gift.  A  very  familiar  instance  is  where  there 
has  been  no  delivery  of  the  thing  given ;  in  all  such 
instances  there  may  be  a  revocation.''  Even  if  the  gift  is 
made  to  a  minor,  the  donor,  before  it  is  completed,  may 
revoke  it.'''     Where  the  payee  of  a  note  j^laced  it  in  the 

1  Manny  v.  Rlxford,  44  111.  129. 

'Smith  V.  Smith,  7  C.  &  P.  401.  But  can  a  minor  consent  to  the  revocation  of 
a  gift?  As  it  is  an  executed  contract,  it  would  teem  not.  The  gift  in  controveisy 
in  til  is  case  was  a  watch  ;  and  possibly  an  article  of  wearing  apparel  stands  on  a 
different  footing  from  other  property. 

^  Mahan  v.  Jane,  2  Bibb.  32;  Jeukins  v.  Jenkins,  1  Mill  (S.  C),  4S  ;  Sanborn  v. 
Goodhue,  28  N.  H.  48. 

*  Villers  V  Beaumont,  1  A'ern.  100;  Bale  v.  Newton,  1  Vern.  4G4;  Boughton  v. 
Bough  ton,  1  Atk.  625. 

^  Beird  v.  Nutthall,  1  Yern.  427 ;  Allen  v.  Arme,  1  Vern.  365 ;  Clavering 
r.  Clavering,  Prec.  Ch.  235;  S.  C.  2  Vern.  473,  affirmed  1  Bro.  P.  C.  122; 
Oxley  V.  Lee,  1  Atk.  625;  Beatson  v.  Beatson,  12  Sims.  281;  Naldred  v. 
(liiham,  1  P.  Wms.  577  ;  Colton  v.  King,  2  P.  Wms.  358.  Contra,  Chadwick 
V.  Doleman,  2  Vern.  628.  "Wliere  a  magistrate  accepted  the  offer  of  a  prisoner 
to  pay  a  certain  sum  of  money  to  the  poor  of  the  parish  if  a  criminal  case  pending 
before  him  were  dismissed,  it  was  lield  that  the  donor  could  recover  back  the 
money  after  lie  liad  paid  it:  Taylor  v.  Lendey,  9  East.  49.  "Where  a  husband  had 
Lind  conveyed  to  his  wife,  and  after  her  death  erased  her  name  and  inserted  his 
own,  it  was  held  ihat  lie  did  not  thus  vest  the  fee  in  himself:  Berry  v.  Kinnaird, 
20  S.  W.  Rep.  511. 

''Johnson  v.  Stevens,  22  La.  Ann.  144 ;  Board,  etc.,  r.  Auditor-General,  G8  Mich. 
659  ;  Dole  r.  Lincoln,  31  Me.  422  ;  Cranz  v.  Kroger,  22  111.  74 ;  Miller  v.  Le  Piere, 
136  Mass.  20 ;  People  n  Johnson,  14  111.  342  ;  Faxon  v.  Durant,  9  Met.  339  ;  Gano 
I'.  Fisk,  43  Ohio  St.  462;  Houser  v.  Singiser,  1  Leg.  Chron.  (Pa.)  145. 

'  Dismukes  v.  Musgrave,  2  La.  337 ;  Whiting  v.  Barrett,  7  Lans.  106. 


88  Gifts. 

hands  of  a  third  jDerson,  and  directed  the  maker  to  pay 
the  amount  due  on  it  to  such  third  person  on  the  payee's 
decease,  and  afterward  died,  it  was  considered  that  such 
third  person  was  not  entitled  to  the  note  as  against  one 
who,  by  the  subsequent  will  of  the  payee,  was  made  legatee 
of  the  note  and  executor  of  the  will,  for  the  reason  that  it 
was  not  a  valid  gift  inter  vivos,  because  it  did  not  go  into 
absolute  and  immediate  effect,  the  donor  having  parted 
only  with  the  possession  and  not  the  dominion  over  the 
property ;  and  it  was  invalid  as  a  donatio  mortis  causa, 
for  the  note  was  not  delivered  in  the  donor's  last  sickness, 
nor  when  he  was  in  peril  of  death,  nor  under  any  special 
apprehension  of  such  peril.^  A  was  employed  by  B  at  a 
monthly  salary.  He  directed  B  to  pay  one-fourth  of  his 
salary,  each  month,  to  C,  for  the  benefit  of  the  latter's 
wife  and  children,  as  a  donation  or  gift  from  him. 
B  failed  to  pay  the  money,  and  C  died,  whereupon  A 
sued  B  for  the  amount  he  was  directed  to  jDay  C.  It  was 
held  that  he  could  recover,  because  the  gift  was  not  com- 
pleted by  delivery — the  payment  by  B  to  C ;  but  it  was 
said,  if  A  had  made  some  binding  promise  to  the  benefi- 
ciaries, the  gift,  or  rather  contract,  would  have  been  valid, 
and  A  could  not  have  recovered  it.^  If  A  had  paid  the 
money  to  C,  of  course  there  could  have  been  no  revoca- 
tion.^ So,  where  A  agreed  with  B,  if  the  latter  would 
collect  a  large  sum  of  money,  he  could  retain  out  of  it  a 
certain  named  sum  as  a  gift  for  his  (A's)  lifetime,  and 
then  at  his  (A's)  death  he  was  to  pay  it  to  C  without  in- 
terest, it  was  held  that  the  gift  was  a  completed  one  and 
could  not  be  revoked.*     But  a  parol  gift  of  an  account  on 

1  Craig  V.  Kittredge.  46  N.  H.  57. 

*  Burke  v.  Steele,  40  Ga.  217  ;  Swartz  v.  Earls,  53  111.  237. 

'Howard   College  v.  Pace,  15    Ga.   486.     That  an  undelivered   gift   may  be 
revoked,  see  Carswell  v.  Ware,  30  Ga.  267. 

*  Gordon  v.  Green,  10  Ga.  534. 


Revocation.  89 

a  third  person  is  executory  and  revocable  at  any  time 
before  the  money  or  part  of  it  is  paid  to  the  donee ;  and 
notice  to  the  debtor  not  to  pay  it  excej^t  to  his  own  cred- 
itor, the  donor,  is  a  revocation/  So,  where  A,  having 
certain  funds  to  his  credit  at  his  banker's,  directed  them 
to  carry  j)art  of  such  funds  to  the  account  of  certain  per- 
sons as  trustees  for  his  wife  and  after  her  death  for  his 
son,  and  such  sums  were  accordingly  carried  over  by  the 
bankers  to  the  account  of  such  persons  in  their  books, 
and  the  dividends  were  from  time  to  time  carried  to  the 
same  accounts,  but  the  testator  never  communicated  the 
facts  to  the  trustees,  and  there  was  some  evidence  that  the 
testator  had  directed  the  transfer  under  an  impression 
that  he  should  be  able,  by  that  means,  to  evade  the  legacy 
duty,  and  that  he  had  shown  an  intention  to  exercise 
some  acts  of  ownership  over  the  funds,  the  court  held 
that  the  appropriations  were  void  and  that  the  testator 
might  at  any  time  have  revoked  them.  Consequently  his 
personal  representatives  received  the  amount  of  the  de- 
posit.^ Even  though  the  donor  delivers  the  gift  to  a 
third  person  for  the  donee,  yet,  if  he  retain  any  control 
over  it  inconsistent  with  a  relinquishment  of  the  dominion 
over  it,  he  may  revoke  the  gift.^ 

107.  Minor  May  Revoke — Creditoes. — But  if  the 
gift  is  made  by  a  minor,  he  may  revoke  it  when  he  be- 
comes of  age,  although  his  subsequent  creditors  cannot 
elect  to  revoke  it  for  him.^  So  his  administrator,  if  the 
minor  died  during  his  minority,  may  rescind  the  gift  and 

1  Chandler  v.  Chandler,  G2  Ga.  612. 

^Gaskell  v.  Gaskell,  2  Yong.  &  J.  501.  City  V^harton  v.  Walker,  4  B.  &  C. 
163 ;  S.  C.  6  Dowl.  &  Ry.  288. 

^  Meiggs  V.  Meiggs,  15  Hun,  453.  Heirs  may  ratify  an  incomplete  gift :  Ventress 
V.  Brown,  34  La.  Ann.  448. 

*  Johnson  v.  Alden,  15  La.  Ann.  505 ;  Holt  v.  Holt,  59  Me.  464. 


90  Gifts. 

recover  back  the  thing  given/  even  though  the  donee  be 
the  donor's  father.'^ 

108.  Gift  for  Benefit  of  Third  Person. — If  the 
gift  is  made  in  favor  of  a  third  person,  there  can  be  no 
revocation  without  the  consent  of  the  beneficiary.  This 
is  particularly  true  where  proj^erty  is  conveyed  to  another 
as  a  gift,  upon  the  express  condition  that  the  donee  shall 
pay  a  third  person  a  certain  sum  of  money  or  perform 
for  him  a  specified  benefit.  In  all  such  cases  the  benefi- 
ciary must  consent  to  the  revocation  before  the  gift  can 
be  revoked.^  In  such  an  instance  the  consent  of  both  the 
donee  and  the  beneficiary  is  essential  to  enable  the  donor 
to  revoke  the  gift.^  So,  where  an  agent  bought  land  in 
the  name  of  a  third  person,  intending  it  as  a  gift  to  him, 
it  was  held  that  he  could  do  no  act  to  revoke  the  gift, 
even  though  the  donee  had  not  actually  acce^oted.^  But 
where  a  father  directed  the  proceeds  of  certain  bales  of 
cotton  to  be  apj)lied  by  his  factor  in  payment  of  a  specific 
debt  of  his  son,  it  was  held  that  he  could  countermand 
the  direction  at  any  time  before  the  factor  had  apj)ropri- 
ated  the  money  as  directed,  or  before  he  had  entered  into 
any  engagement  with  the  son's  creditor  to  hold  it  to  his 
use.^  But  if  the  donor  deliver  the  thing  given  to  a  third 
person  to  deliver  in  the  future  to  the  donee,  he  may 
revoke  the  gift  at  any  time  before  the  donee  has  actually 
or  constructively  received  the  custody  of  the  article  given. 
"  If  it  be  delivered  to  a  third  person,"  said  the  Supreme 
Court  of  Massachusetts,  "  with  authority  to  deliver  it  to 

^Dinsmore  v.  Webber,  59  Me.  103. 

^  Eskridge  v.  Farrar,  34   La.  Ann.  709 ;    Duplessis  v.  Kennedy,  6   La.  231 ; 
Poirier  v.  Lacroix,  G  Can.  L.  Jur.  302. 

*  Crawford  v.  Puckett,  14  La.  Ann.  639 ;  Nolen  v.  Harden,  43  Ark.  307. 
^Giannoni  v.  Gunny,  14  La.  Ann.  632. 

*  Walton  V.  Tims,  7  Ala.  470. 


Revocation.  91 

the  donee,  this  depositary,  until  the  authority  is  executed 
by  an  actual  delivery  to  and  acceptance  by  the  donee, 
is  the  agent  of  the  donor,  who  may  revoke  the  authority 
and  take  back  the  gift."  ^ 

109.  Estoppel  to  Deny  Gift. — A  donor  may  so  con- 
duct himself  as  to  estop  himself  to  deny  the  validity  of 
the  gift.  Thus,  a  father  purchased  land  and  had  it  con- 
veyed to  his  infant  son.  He  then  made  improvements 
thereon  and  occupied  it  as  a  residence.  In  order  to  bor- 
row money  on  the  property  to  pay  for  the  improvements, 
he  had  himself  appointed  as  guardian  of  his  son,  and  in 
his  sworn  petition  for  the  appointment  stated  that  the 
property  belonged  to  the  son.  It  was  held  that  he  was 
estopped  from  afterward  recovering  title  to  the  property 
on  the  ground  that  the  son  held  it  only  in  trust  for  him.'^ 

110.  Revocation  of  a  Trust. — Like  a  gift  for  the 
benefit  of  a  third  person,  a  trust  once  created  cannot  be 
revoked,  unless  all  jDcrsons  interested  consent  to  the  revo- 
cation. Thus  a  mortgagee  of  an  equitable  mortgage, 
created  by  a  deposit  of  the  title  deeds,  signed  a  memo- 
randum, written  by  the  mortgagor,  accompanying  the  de- 
posit, which  contained  directions  to  the  mortgagor  to  pay 
off  the  mortgage  debt  by  certain  quarterly  installments, 
and  after  paying  a  sj^ecified  amount  to  the  mortgagee,  to 
invest  the  remainins;  installments  in  consols  for  the  benefit 
of  the  children  of  a  third  person.  Afterward  the  mort- 
gagee signed   a  memorandum  written  by  the  mortgagor, 

^Sessions  v.  Moseley,  4  Cusli.  87;  Smith  v.  Ferguson,  90  Ind.  229;  Grenier  v. 
Leroux,  1  Leg.  News,  23 L 

^Kramer  r.  Kramer.  68  la.  567.  See  McCarthy  r.  McCarthy,  3G  Conn.  177; 
Bnmer  v.  Bruner,  115  111.  40.  If  the  heir  ratify  an  invalid  gift,  lie  is  estop;  ed  to 
reclaim  the  property  :  Brown  v.  Niethammer,  141  Pa.  St.  114 ;  Yentress  v.  Brown, 
34  La.  Ann.  448. 


92  Gifts. 

directing  him  to  continue  to  pay  the  instalhnents  of  the 
debt  to  her,  and  not  invest  them  in  consols  as  previously- 
directed  ;  but  it  was  held  that  the  effect  of  the  first  mem- 
orandum and  the  notice  thereof  to  the  mortgagor  created 
a  valid  and  irrevocable  trust,  which  the  mortgagee  could 
not  annul,  and  that  the  children  of  such  third  person  were 
entitled  to  the  amount  of  the  funds  thus  put  in  trust.^  In 
this  case  the  beneficiaries  had  no  knowledge  of  the  trust 
until  after  the  attempted  revocation.^ 

111.  Keservation  of  Right  to  Revoke  Gift. — If 
the  gift  is  a  perfected  one,  a  reservation  of  the  right  to  re- 
voke it  is  void ;  this  is  especially  true  of  a  reservation  in- 
serted in  a  deed  of  gift  of  a  chattel.  Such  a  reservation  is 
inconsistent  with  the  operative  portion  of  the  instrument ; 
and  for  that  reason  void.^  But  if  the  reservation  of  a 
right  to  revoke  arises  only  on  the  happening  of  a  certain 
contingency,  then  it  is  valid ;  and  the  right  may  be  en- 
forced when  the  contingency  happens.*  A  reservation 
of  the  right  to  revoke  may  defeat  a  gift.  Thus  where  a 
father  by  deed  transferred  personal  property  to  his  son, 
and  the  latter  delivered  to  his  father  an  instrument  recit- 
ing the  deed  of  gift,  agreeing  to  care  for  his  father  and 
furnish  him  money  to  live  on,  and  stipulating  that  he 
would  transfer  back  the  property  at  any  time  his  father 
desired  it,  this  was  held  not  to  be  a  gift,  because  of  the 
power  of  revocation,  but  was  a  valid  trust,  and  the  property 

1  Paterson  v.  Murphy,  11  Hare,  88  ;  S.  C.  17  Jur.  298  ;  22  L.  J.  Cli.  882  ;  1  Eq. 
Eep.  173  ;  1  W.  K.  274 ;  17  E.  L.  &  Eq.  287  ;  Moore  v.  Darton,  4  DeG.  &  S. 
517. 

'^See  two  kindred  cases:  Bayley  v.  Boidcott,  4  Russ.  345  ;  Maguire  v.  Dodd,  9 
Irish  Ch.  (N.  S.)  452. 

^  Daniel  v.  Veal,  32  Ga.  589 ;  Rosenbiirg  v.  Rosenburg,  40  Hun,  91.  A  reserved 
right  of  revocation  is  not  inconsistent  with  the  creation  of  a  valid  trust ;  and  if 
not  exercised  by  the  donor  during  his  life,  the  gift  remains  valid :  Lines  v. 
Lines,  142  Pa.  St.  149.     See  Rosenburg  v.  Rosenburg,  40  Hun,  91. 

*  Yonn  V.  Pittman,  S2  Ga.  637. 


Revocation.  93 

thus  transferred  was  held  by  the  transferee  in  trust  for 
the  donor ;  and  the  son  having  agreed  to  pay,  at  his 
father's  death,  certain  named  sums  to  designated  persons, 
he  was  hekl  a  trustee,  at  the  donor's  death,  for  such  persons 
to  the  amount  they  were  entitled  to,  and  the  remainder  of 
the  property,  it  was  said,  belonged  to  the  son.^ 

112.  Deed  of  Gift  Moetts  Causa  Cancelled. — If  a 
conveyance  is  made  as  a  gift,  in  expectation  of  death,  and 
death  does  not  follow  from  the  then  illness,  a  court  of 
equity  will  entertain  a  bill  to  cancel  the  deed,  even  if  it  be 
for  real  estate,  on  the  ground  of  mutual  mistake.^ 

113.  Fraud  or  Undue  Influence. — If  a  gift  is 
brought  about  by  fraud  or  undue  influence,  as  has  been 
elsewhere  discussed,^  it  may  be  revoked  by  the  donor  *  or 
his  personal  representatives  or  heirs,  according  to  the 
descent  of  the  property  given. 

114.  Revocation  of  Conditional  Gift. — If  a  donor 
make  a  conditional  gift  and  deliver  the  thing  given  to  a 
third  person  to  deliver  to  the  donee  when  the  condition  is 
performed,  the  donor  may  revoke  the  gift  at  any  time  be- 
fore the  performance  of  the  condition.^ 

115.  Delivery  in  Escrow. — A  gift  may  be  delivered 
to  a  third  person  in  escrow  for  the  donee.  Such  gifts  are 
in  fact  conditional  gifts,  and  may  be  revoked  at  any  time 
before  they  have  become  absolute.  Thus  where  the  donor 
delivered  a  deed  of  gift  to  the  husband  of  the  donee,  in 

^  Rosenburg  v.  Rosenburg,  40  Hun,  91. 

^Houghton  V.  Houghton,  34  Hun,  212;  Forshaw  d.  "VVelsby,  30  Beav.  243; 
"WoUaston  v.  Tribe,  L.  R.  9  Eq.  44  ;  Garnsey  v.  Mundy,  24  N,  J.  Eq.  243. 

^See  Section  35. 

*Saufley  v.  Jackson,  16  Tex.  579 ;  Millican  v.  Millican,  24  Tex.  426. 

*Houser  v.  Singiser,  1  Leg.  Chron.  (Pa.)  145;  Lyon  v.  Marclay,  1  Watts  (Pa.), 
271. 


94  Gifts. 

pursuance  of  a  distinct  understanding  and  agreement  that 
it  should  not  be  recorded  or  take  effect  without  the 
donor's  consent,  and  that  if  she  desired  to  have  it  re- 
turned to  her  unrecorded,  the  contemplated  gift  should 
become  inoperative  and  void  ;  it  was  held  that  a  delivery 
in  violation  of  the  understanding  and  agreement  was  in- 
effectual to  make  the  gift  valid,  and  that  tlie  gift  could  be 
revoked.  A  decree  was  entered  ordering  the  gift-deed 
cancelled.^ 

116.  RevocatiojST  by  Death. — If  the  article  is  deliv- 
ered to  a  third  person  to  be  delivered  by  him  to  the  donee, 
this  dejDOsitary,  as  we  have  seen,  until  the  authority  is 
executed  by  an  actual  or  perhaps  a  constructive  delivery 
to  and  acceptance  by  the  donee,  is  the  agent  of  the  donor, 
who  may  revoke  the  authority  and  take  back  the  gift ; 
"  and,  therefore,  if  the  delivery  do  not  take  place  in  the 
donee's  lifetime,  the  authority  is  revoked  by  his  death."  '^ 
This  is  true  even  where  the  donor  has  given  a  power  of 
attorney  authorizing  the  making  of  the  gift.^ 

117.  Wedding  Presents,  Intended  Maeriage  Broken 
Off. — If  an  intended  husband  make  a  present,  after  the 
treaty  of  marriage  has  been  negotiated,  to  his  intended 
wife,  and  the  inducement  for  the  gift  is  the  fact  of  her 
promise  to  marry  him,  if  she  break  off  the  marriage,  he 
may  recover  from  her  the  value  of  such  present.*  But 
he  may  not  recover  back  a  gift  made  to  a  person  to 
induce  him  to  introduce  the  donor  to  a  woman  and  by 
means  thereof  to  gain  her  favor.^ 

^  Fritz  V.  Brustle,  41  Leg.  Int.  4. 

"Sessions  v.  M<  seley,  4  Cusli.  87;  Smith  v.  Ferguson,  90  Ind.  229. 

^  Hergesheimer's  Estate,  3  Pa.  C.  C.  159;  Keyl  v.  Westerliaus,  42  Mo.  App.  49. 

*  Williamson  v.  Johnson,  62  Yt.  378;  S.  C.  20  Atl.  Rep.  279;  Robinson  r. 
Cummings,  2  Atk.  409  ;  14  Yin.  Abr.,  title  Gift,  pi.  7  ;  Fonb.  Eq.,  sect.  15  ;  1  Com. 
Dig.  313;  Stauffer  v.  Morgan,  39  La.  Ann.  632;  S.  C.  2  So.  Rep.  98. 

^  Robinson  v.  Cummings,  supra.     See  Section    . 


Revocation.  95 

118.  Unintended  Gift — tMistake. — A  gift  may  be 
void  and  for  that  reason  may  be  revoked.  Suppose  a 
donor  of  a  golden  vessel  gives  it  away,  laboring  at  the 
time  under  the  impression  that  it  is  a  gilt  one.  Here  is  a 
mistake ;  he  has  given  what  he  had  no  actual  intention  to 
give,  and  it  makes  no  difference  that  the  donee  knew  it 
was  a  golden  one.  To  allow  a  rescission  by  the  donor  of 
the  gift  works  no  injury  to  the  donee,  while  it  restores  to 
the  donor  a  thing  he  never  knowingly  parted  with.  But 
if  the  donor  intended  to  give  a  vessel  of  gold  and  by 
mistake  gave  one  of  gilt,  the  gift  is  binding  both  upon 
him  and  the  donee ;  for  the  donor  suffers  no  damage 
from  the  transaction,  while,  if  the  facts  were  reversed, 
he  would  be  a  loser.^  Such  at  least  is  the  Roman  law ; 
but  why  should  there  be  any  difference  ?  In  either  in- 
stance there  was  no  actual  intention  to  give  the  thing 
given ;  there  was  an  actual  mistake  on  the  part  of  the 
donor ;  and  by  what  right  has  the  law  to  say  he  values  a 
gold  vessel  higher  than  a  gilt  one  ?  Intention  to  give  the 
thing  given  is  one  of  the  essential  parts  of  a  valid  gift, 
and  if  that  be  absent  there  can  be  no  gift ;  so  that  to  hold 
the  gift  of  a  gilt  vessel  valid  when  a  gold  one  was  in- 
tended is  to  hold  valid  a  gift  where  there  was  no  intention 
to  make  it.  The  loss  to  the  donor  is  not  necessarily  a  part 
of  the  consideration  in  the  argument ;  it  is  totally  imma- 
terial.^ 

119.  Immokality  Does  Not  Revoke. — A  gift  com- 
pleted cannot  be  revoked  because  of  the  immoral  purpose 
for  which  it  was  given.  In  this  respect  it  is  like  a  eon- 
tract  based  upon  an  illegal  consideration ;  for  when  the 
latter  is  executed  it  cannot  be  rescinded,  and  the  courts 

^Savigny  L.  22  de  V.  O.  (25,  1) ;  1  Wliart.  Cont.,  sect.  195. 
'See  generally,  on  mistake,  Section  450. 


9G  Gifts. 

will  leave  the  persons  to  it  where  they  have  placed  them- 
selves.^ Tims  past  cohabitation  alone  will  not  render  a 
gift  by  the  party  holding  such  a  relation  to  the  donee 
void  or  illegal.^  80  usually  a  gift  upon  an  illegal  condi- 
tion will  be  valid,  the  condition  being  void/' 

120.  Change  of  Position  by  Donee  in  View  of 
Gift — Acquiescence. — A  gift,  although  imperfect,  may 
become  of  such  a  vested  character  as  to  prohibit  the 
donor's  revoking  it.  Thus  a  father  dying  w^illed  his  farm, 
dividing  it  between  them,  to  his  two  sons,  each  half 
charged  with  an  equal  annuity  in  favor  of  their  mother. 
The  two  sons  and  mother  lived  together  two  years,  and 
the  sons  paid  off*  their  father's  debts.  One  of  the  sons 
being  ready  to  marry,  the  mother  and  tlie  other  son 
moved  to  the  latter's  part  of  the  farm,  leaving  the  first 
son  in  possession  of  his  part ;  and  they  divided  equally 
bet)veen  them,  with  the  assistance  of  others,  their  father's 
personal  property.  At  the  time  of  this  division  the 
mother  said  she  would  forgive  her  sons  the  two  years'  ar- 
rears of  the  annuities,  and  repeated  it  afterward  several 
times,  both  before  and  after  the  marriage,  assigning  as  a 
reason  that  they  had  fed,  clothed,  and  housed  her,  had 
given  her  all  she  wanted,  had  paid  \\cr  husband's  debts, 
had  been  good  to  her,  she  wished  them  well,  and  that 
they  could  not  pay  the  debts,  keep  her,  and  pay  the  an- 
nuities. After  the  death  of  the  married  son,  she  attempted 
to  withdraw  the  gift  of  tlio  aruiiiity  his  part  of  the  farm 
had  been  charged  with,  although  she  made  no  such 
attfiript  as  to  tlie  surviving  son,  and  attempted  to  enforce 

'  Carter  r.  Montgomery,  2  Tenn.  Ch.  216;  Bivins  v.  Jarnigin,  3  Baxt.  282; 
Hill  V.  Freeman,  73  Ala.  200  (a.  oontrart). 

*  Smith  V.  Dii  Bose,  78  Geo.  413 ;  Bcall  v.  Beall,  8  Ga.  210,  224 ;  Ilargroves  v. 
Freeman,  12  Ga.  342 ;  Davis  v.  Moody,  15  Ga.  175. 

» Iloggatt  V.  Gibbs,  15  La.  Ann.  700. 


Revocation.  97 

it  against  the  land  ;  but  the  court  hehl  that  this  she  could 
not  do,  even  though  her  intention  not  to  enforce  the  an- 
nuity was  only  expressed  verbally,  because  of  the  fact 
that  she  had  acquiesced  so  long  in  the  understanding  of 
all  of  them,  and  the  circumstances  and  conditions  of  the 
son  and  mother  had  become  altered/ 

121.  Gift  of  Real  Estate  by  Parol. — A  parol  gift 
of  real  estate  may  be  revoked,  but  at  what  period  after 
the  making  of  the  gift  is  not  settled.  Thus  in  Alabama 
it  is  said  that  the  gift  creates  a  mere  tenancy  at  will,  and 
it  may  be  revoked  or  disaffirmed  by  the  donor,  unless  an 
adverse  possession  under  it  had  continued  for  the  statutory 
period.^  But,  as  has  elsewhere  been  shown  at  length,  this 
is  not  the  law  in  many  of  the  States.  It  seems  clear, 
upon  principle,  that  a  donor  cannot  revoke  a  parol  gift 
of  land  after  the  time  at  which  the  donee  is  entitled  to 
enforce  a  specific  performance  for  conveyance  of  the  legal 
title,  or  can  successfullv  defend  as-ainst  an  action  brought 
by  the  donor  for  possession  of  the  land  given.  At  these 
periods  of  time  the  gift  has  become  a  perfected  one,  and  it 
is  irrevocable.  The  circumstances,  however,  of  the  donee 
may  have  not  been  sufficiently  changed  to  entitle  him  to 
hold  the  land,  but  they  may  be  such  as  to  entitle  him  to 
damages.^ 

122.  Redelivery. — It  by  no  means  follows  that  a  de- 
liverv  back  bv  the  donee  to  the  donor  of  the  thins:  siven 
will  amount  to  a  revocation.  There  are  many  cases  which 
hold  that  it  does  not;*  but  the  redelivery  may  be  accom- 
panied by  such  circumstances  that  the  fact  of  redelivery 

'Long  r.  Long,  16  Gr.  Ch.  (Can.)  239  ;  S.  C.  17  lb.  251. 
*  Collins  c.  Johnson,  57  Ala.  304 ;  Hubbard  r.  Allen,  59  Ala.  283. 
'  See  Pearee  v.  Gibbon,  6  Rev.  Leg.  649. 
*See  Sections  209,  210. 
7 


08  Gifts. 

will  be  construed  as  a  revocation.  Tims  where  a  donor, 
in  anticipation  of  death,  by  an  agreement  in  writing  dis- 
posed of  his  effects,  and  at  the  same  time  delivered  the 
possession  of  tliem,  a  redelivery  by  the  donee  to  the  donor 
was  considered  to  be  a  revocation  of  the  gift.^  But  such 
is  not  necessarily  the  case,  as  has  been  said.  Thus  the 
gift  of  a  note,  fully  executed,  was  held  not  revoked  by  the 
fact  that  the  donee  redelivered  it  to  the  donor,  under  an 
agreement  with  her  that  she  could  collect  thereon  such  an 
amount  as  she  might  need  for  her  sup2:)ort  if  she  should 
become  poor.' 

123.  Donatio  Mortis  Causa. — A  gift  donatio  mortis 
causa  may  be  revoked  by  the  donor  at  any  time  before 
his  death,  although  all  the  formalities  have  been  observed 
necessary  to  make  such  a  gift  valid  ;  ^  and  after  the  act  of 
revocation  he  may  give  it  to  another.  Indeed  giving  it  a 
second  time,  to  another  person,  is  a  revocation  of  the  first 
gift,^  even  if  it  is  given  by  will  executed  subsequent  to 
the  gift,  according  to  some  of  the"  cases.^  But  if 
the  will  is  executed  before  the  gift  is  made,  the  gift 
is  not  revoked.'^     Of  course,  as  is  elsewhere  discussed,"^ 


1  Wigle  V.  Wigle,  G  Watts,  522. 

•^  Marston  ?'.  Marston,  64  N.  H.  146. 

2  Taylor  v.  Henry,  48  Md.  550,  559  ;  S.  C.  30  Aiu.  Eep.  486  ;  Duncan  v. 
Duncan,  5  Litt.  12;  Parish  v.  Stone,  14  Pick.  198;  Gass  v.  Simpson,  4 
Coldw.  288;  Harris  v.  Clark,  2  Barb.  94;  afBrmed  3  N.  Y.  93;  Dole  v.  Lin- 
coln, 31  Me.  422. 

*Pari<er  7'.  Marston,  27  Me.  196;  Bunn  v.  Markham,  7  Taunt.  224;  W^ells  r. 
Tucker,  3  Binn.  36G,  370. 

'•'  .Jones  V.  Selby,  Prec.  Ch.  300 ;  Harabrooke  v.  Simmons,  4  Russ.  25 ;  Jayne  v. 
Murphy,  31  111.  .\pp.  28;  Hnniington  v.  Gilmore,  14  Barb.  243;  Bloomer  v. 
Bloomer,  2  Bradf.  339;  Edwards  v.  Jones,  1  My.  &  Cr.  226,  233;  Basket  v. 
Hassell,  107  U.  S.  002;  Bunn  v.  :\Iarkham,  7  Taunt.  224,  231. 

«  Merchant  v.  Merchant,  2  Bradf.  432;  Nicholas  i>.  Adams,  2  Whart.  17,  22; 
Eeddel  v.  Dobree,  10  Sims.  244. 

"  See  Section  42. 


Revocation.  99 

a  recovery  of  the  donor  from  his  then  sickness  is  of  itself 
a  revocation  of  the  gift/ 

124.  Burden  to  Show  Non-Revocation  in  a  Volun- 
tary Deed  of  Settlement. — In  the  case  of  a  voluntary 
settlement  by  deed,  as  a  marriage  settlement,  the  donee 
must  show  very  distinctly  the  intent  of  the  donor  to 
make  the  gift,  for  in  the  absence  of  a  certain  intent  to 
make  the  gift  irrevocable,  the  omission  of  a  power  to  re- 
voke it  is  jirima  facie  evidence  of  a  mistake,  and  casts 
the  burden  of  supporting  the  settlement  upon  the  donee.^ 
"  A  person  taking  a  benefit  under  a  voluntary  deed  which 
is  not  subject  to  a  power  of  revocation  has  thrown  upon 
him  the  burden  of  proving  that  the  gift  was  meant  by  the 
donor  to  be  irrevocable,"  and  "  a  voluntary  gift  not  sub- 
ject to  a  power  of  revocation,  but  not  meant  to  be  irrevo- 
cable, may  be  set  aside  by  the  donor."  ^ 

125.  Revocation  Under  Spanish  and  Mexican 
Law. — In  the  States  of  Louisiana,  Texas,  California,  and 
perhaps  in  Colorado,  as  well  as  in  the  Territories  of  New 
Mexico  and  Arizona  (perhaps)  the  Spanish  and  Mexican 
law  has  been  in  force  with  respect  to  gifts  between  hus- 
band and  wife.  These  laws  in  this  respect  differ  from  the 
common  law.  "  Such  donations,"  it  is  said,  "  are  pro- 
hibited in  order  that  the  parties  may  not  be  prejudiced 
thereby,  and  dispossess  themselves  of  their  property, 
through  their  mutual  affection ;  and  also  because  the  one 

1  Staniland  v.  Willott,  3  MacN.  &  Gor.  664 ;  Wells  r.  Tucker,  3  Binn.  366  ; 
Chevallier  v.  Wilson,  1  Tex.  161  ;  Bates  v.  Kempton,  7  Gray,  382. 

2  Russell's  Appeal,  75  Pa.  St.  269. 

^Wollaston  V.  Tribe,  L.  R.  9  Eq.  44;  Hall  v.  Hall,  L.  R.  14  Eq.  365;  Coutts  v. 
Acworth,  L.  R.  8  Eq.  558;  Forshaw  v.  Welsby,  30  Beav.  243;  Phillips  v.  Mul- 
lings,  L.  R.  7  Ch.  Ap.  244;  Phillipson  v.  Kerry,  32  Beav.  628;  Huguenin  t>. 
Baseley,  14  Ves.  273  ;  Cooke  v.  Lamotte,  15  Beav.  234  ;  Garnsey  v,  Mundy,  13  Aiu. 
L.  Reg.  345 ;  Miskey's  Appeal,  107  Pa.  St.  611. 


100  Gifts. 

who  was  the  most  avaricious  woukl  be  in  a  better  condi- 
tion than  the  other  who  gave  freely.  And  if  they  do 
make  any  such  gifts  after  marriage  they  will  not  be 
valid,  if  one  of  the  parties  become  thereby  poorer  and  the 
other  richer,  unless  he  who  made  the  donation  did  not 
revoke  or  annul  it  during  his  life,  for  then  it  would  re- 
main valid.  But  if  the  party  making  the  donation  re- 
voke it  during  his  life  by  expressly  saying  :  '  I  do  not 
wish  such  a  donation  made  to  my  wife  should  be  valid  ;' 
or  if  he  observe  silence  in  this  respect,  and  afterward  give 
or  sell  the  same  thing  to  another  person  ;  or  if  the  party 
receiving  the  donation  die  before  the  party  who  made  it, 
in  either  of  these  cases  the  first  donation  will  become 
void."  ^  In  construing  this  law  and  others,  the  Supreme 
Court  of  California  said  :  "  By  this,  and  others  of  like 
import,  a  donation  made  by  a  wife  to  her  husband  or  by 
a  husband  to  his  wife,  was  revocable  during  the  life  and 
at  the  instance  of  the  donor  ;  and  conversely  it  became 
valid  if  not  revoked  at  the  death  of  the  donor,  if  the  donee 
then  survived."  ^ 

126.  Bevocation  by  Birth  of  Child. — Under  the 
law  in  force  in  Louisiana  in  1820,  if  a  husband  and  wife 
gave  to  the  survivor  the  property  of  the  first  one  of  them 
dying,  if  there  be  no  child  born  of  their  marriage,  the  do- 
nation was  revoked  by  the  birth  of  a  child,  and  not  re- 
vived by  his  death  during  their  joint  lives.^ 

127.  Civil  a-^d  French  Law. — French  writers  on  the 
civil  law  speak  of  gifts  as  contrats  de  bienfaisance,  or  con- 

'  Law  4,  Title  11  of  the  4  Partidas,  translated  in  Fuller  v.  Ferguson,  26  Cal.,  p. 
574. 

*  Fuller  V.  Ferguson,  26  Cal.,  p.  574 ;  Labbe  v.  Abat,  2  La.  553 ;  Holmes  v.  Pat- 
terson, 5  Mart.  693  ;  Scott  v.  Ward,  13  Cal.  45<S. 

^  Frideau  i-.  Frideau,  8  Mart.  707.    See  Sirois  v.  Michaud,  2  Low.  Can.  Eep.  177. 


Revocation.  101 

tracts  of  beneficence,  the  object  of  the  person  making  it  be- 
ing to  confer  a  benefit  on  the  promisee.  The  Code  Napoleon 
follows  the  Komau  law,  and  agreeable  to  the  latter  a  gift 
may  be  recalled  for  the  ingratitude  of  the  donee  or  his  ill- 
treatment  of  the  donor.  He  who  seeks  to  enforce  by 
legal  process  a  promise  to  give  is  deemed  unjust  and 
harsh,  and  must  be  prepared  to  show  that  there  is  no 
doubt  of  the  donor's  design  to  make  a  gift,  and  that  he 
went  so  far  toward  com|)leting  it  that  he  cannot  justly 
change  his  mind.^ 

'  Hare   on  Contracts,  182,  183.  Citing  Pardessus  No.  176  ;  Delsol,  livre  HI, 
tit.  iii,  ch.  iii,  sect.  4  ;  Code  Napoleon,  Art.  955. 


CHAPTER  IX. 


DELIVERY. 


128.  Introduction.  150. 

129.  Definition  of  Delivery.  151. 

130.  Rule     Requiring    Delivery    the 

Same  in  Gifts  Inter  Vivos  and 
Mortis  Causa.  152. 

131.  Delivery  Essential. 

132.  Reason  for  Rule  Requiring  a  De-     153. 

livery.  154. 

133.  Mere  Intention  Cannot  Take  the 

Place  of  Delivery.  155. 

134.  Delivery   Must   be   Sufficient   to    156. 

Pass  Title— Trust. 

135.  Parting  with  Dominion  Over  the     157. 

Thing  Given. 

136.  Mere   Possession  by   Donee  Not     158. 

Sufficient. 

137.  Right  to  Use  Distinguished  from     159. 

Possession. 

138.  Actual  and  Manual  Delivery. 

139.  Actual,  Constructive,  or  Symbol-     160. 

ical  Delivery. 

140.  The    Situation    of    the    Subject-     161. 

Matter   of  the   Gift  Must  be     162. 
Considered. 

141.  Article  Incapable  of  Delivery.  163. 

142.  Conditional  Delivery. 

143.  Time  of  Delivery.  164. 

144.  Future  Delivery. 

145.  Condition    and  Intention  of  the     165. 

Donor  Must  be  Considered — 
Arbitrary  Enforcement  of  Rule.    166. 

146.  Declarations  of  Donor  Insufficient 

to  Show  a  Delivery.  167. 

147.  Donor  Believing  that  a  Further 

Act  Was   Necessary  to   Com- 
plete Gift.  168. 

148.  Act  of  Delivery  Slight  or  Ambig- 

uous but  Intent  and  Belief  of    169. 
Donor  Clear. 

149.  Baron  Pollock's  Decision.  170. 

102 


Delivery  by  Way  of  Bailment. 

Donee  Unaware  of  Thing  Given, 
Although  He  Knew  That  Some- 
thing of  Value  was  Presented. 

Donee   in   Possession   at   Time   of 
Gift. 

Forgiving  Debt. 

Gift  of  a  Part  of  a  Debt — Impos- 
sible to  Make  a  Delivery. 

Gift  of  Part  of  Article. 

Delivery  of  Account  Owed  by 
Donee  to  Donor. 

Article  Given  Not  Present  at  Time 
and  Place  of  Delivery. 

Delivery  of  Key  to  Chest  or 
Drawer. 

Delivery  of  Key  of  Box  in  Donor's 
Bank — Separation  of  Amount  of 
Money  Given  from  Bulk. 

Delivery  to  Third  Person  for 
Donee. 

Delivery  to  Agent  of  Donor. 

Donor  Revoking  Mandate  to  De- 
liver to  Donee. 

Delivery  by  Executor  or  Adminis- 
trator. 

Donor  Repossessing  Himself  of  tiie 
Gift  After  Delivery  to  Agent. 

Revocation  of  Agent's  Authority 
After  Delivery  Made. 

Delivery  to  Third  Person  for 
Future  Delivery  to  Donee. 

Delivery  to  Third  Person,  But  No 
Actual  Delivery  to  Donee  Until 
After  Donor's  Death. 

Presumption  Arising  from  Proof 
of  Delivery  to  a  Third  Person. 

Between  Members  of  the  Same 
Family — Husband  and  Wife 

Husband  Purchasing  Gift  for  Wife. 


Delivery. 


103 


171.  Horse  Retained  by  Husband  in  His 

Own  Stable — Horse  in  Livery 
Stable. 

172.  Remarks  on  SufEciency  of  Delivery 

by  Husband  to  Wile. 

173.  Money  Deposited  in  Joint  Names 

of  Husband  and  Wife. 

174.  Delivery  by  Parent  to  Cbild — In- 

fant. 

175.  Possession    of    Donor— Parent    in 

Possession  of  Donee — Infant  — 
Guardian. 

176.  Instances    of    Imperfect    Delivery 

by  Father  to  Child. 

177.  Purchase    of   Gift    by   Parent    for 

His  Child. 

178.  Purchase   by  the   Child    with    the 

Tiling  Given,  Right  of  Child 
to  the  Article  Purchased — Sale 
of  Gift. 

179.  Gift   by  Father   to  Child   of   Lot- 

tery Ticket. 

180.  Gift    by    Parent    to    Adult    Child 

— Person  a  Member  of  His 
Family. 

181.  Property   Given   in    Adverse    Pos- 

session of  Third  Person. 

182.  Gift  of  Growing  Crojis. 

183.  Gift  of  Income  of  Mill. 

184.  Gift  of  Registered  Bonds. 

185.  shifting    Gilt    from   One    Drawer 

to  Another. 

186.  Gift    of    Money    Represented    by 

Note. 

187.  Delivery  of  Shares  of  Stock. 

188.  Gift    by    Surety    to    Principal    of 

Debt  He  Pays. 

189.  Gift    by    Deed    or    Writing    Dis- 

penses with  Delivery  of  Ar- 
ticle Given. 

190.  Unsealed     Instrument     Not    Suffi- 

cient to  Dispense  with  Deliv- 
ery of  Thing  Given — Estoppel. 

191.  Gift  by  Deed  of  Reversionary  In- 

terest. 


192. 

193. 

194. 

195. 

196. 
197. 
198. 

199. 
200. 

201. 

202. 

203. 

204. 

205. 
206. 


207. 

208. 


209. 
210. 

211. 
212. 


213. 

214. 


Deed  Insufficient  to  Ojerate  as  a 

Delivery. 
Deed  or  Writing   in  a   Donatio 

Mortis  Causa. 
Delivery  of  Deed  at  Recording 

Office. 
Order  to  Agent  to  Deliver  Gift 

to  Donee. 
Delivery  c.f  Receipt  Sufficient. 
Consideration    for   Deed — Slaves. 
Gift  by  Deed  of  Undivided  In- 
terest. 
Deed  Not  Produced — Destroyed. 
Writing   Affi:sed   to  the   Article 

Given. 
Donor  Reserving  Interest  in  or 

Use  of  Article  Given  by  Parol. 
Donor  Reserving  Interest  in  or 

Use  of  Article  Given  by  Deed. 
Revocation  of  Right  to  Use  Part 

of  Fund  Given. 
Gift  of  Bonds  with  Reservation 

of  the   Accruing  Annual  In- 
terest— Trust. 
Gift  of  Note  with  Reservation  of 

Accruing  Interest. 
Gift   to   be   Returned   if    Donor 

Make   Demand  for  it  in  His 

Lifetime. 
Hire  of  Slave,  Animal,  or  Chattel. 
Parol   Gift    to    Donee    for    Life 

with     Remainder     Over      to 

Third  Person. 
Repossession   by  or   Delivery  to 

Donor. 
Donee  Has  Burden  to  Show  That 

the    Redelivery   Was    Not    a 

Rescission  of  the  Gift. 
Redelivery    or    Repossession    of 

Donatio  Mortis  Causa. 
Donee   of    Imperfect   Gift    M;iy 

Maintain  an  Action  Again-t  a 

Wrong-Doer. 
Proof  of  Delivery. 
Question  for  Jury. 


128.    Introduction. — Xearly    all    the    cases    involve 
questions  of  delivery ;  and  this  branch  of  the  subject  has 


104  Gifts. 

assumed  far  more  importance  than  any  other ;  indeed, 
it  has  occupied  the  attention  of  the  courts  more  than  all 
the  others  combined.  While  general  rules  may  be  laid 
down  touching  the  sufficiency  of  a  delivery,  yet  they  are 
not  always  infallible  guides.  "  While  every  case  must  be 
brought  within  the  general  rule  ujDon  the  points  essential 
to  such  a  gift,"  said  Justice  Mitchell,  of  Indiana,  "  yet, 
as  the  circumstances  under  which  donationes  mortis  causa 
are  made  must  of  necessity  be  infinite  in  variety,  each 
one  must  be  determined  upon  its  own  peculiar  facts  and 
circumstances."  ^ 

129.  Definition  of  Delivery. — A  delivery  of  a  chat- 
tel, in  the  instance  of  a  gift,  is  a  transfer  of  possession, 
either  by  actual  tradition — from  hand  to  hand — or  by  an 
expression  of  the  donor's  willingness  that  the  donee  should 
take  the  chattel  when  it  is  present  and  in  a  situation  to  be 
taken  by  either  party .'^ 

130.  Rule  Requiring  Delivery  the  Same  in  Gifts 
Inter  Vivos  and  Mortis  Causa. — The  courts  almost 
unanimously  lay  down  the  rule  that  what  is  a  good 
delivery  in  a  donatio  inter  vivos  is  also  a  valid  delivery  in 
a  donatio  mortis  causa ;  and  that  there  is  in  this  respect 
no  difference  in  the  requisites  of  a  good  delivery  in  those 
two  classes  of  gifts.^     "  After  examining  all  the  cases," 

'  Devol  V.  Dye,  123  Ind.  321,  citing  Dickeschied  v.  Exchange  Bank,  28  W.  Va, 
340,  and  Kiff  v.  Weaver,  94  N.  C.  274;  55  Ana.  Rep.  601.  The  Virginia  statute 
requiring  :ictual  possession  to  be  given  has  no  reference  to  a  gift  mortis  causa: 
Thomas  v.  Lewis,  15  S.  E  Eep.  389. 

2  Caldwell  V.  Wilson,  2  Speer  Eq.  (S.  C.)  75.  "  What  shall  constitute  a  delivery 
lias  not,  perhap-^,  been  very  accurately  defined.  In  Davis  v.  Davis,  reported  in  a 
note  to  Brashears  v.  Bhisingame,  1  N.  &  McCord,  225,  the  idea  is  that  any  act  will 
do  which  is  significant  of  the  donor's  intention  that  the  transfer  shall  take  effect  at 
the  time.  The  same  thing  is  to  be  found  in  other  authorities.  In  Reid  v.  Co\- 
cock,  1  N.  &  McCord,  592,  that  seems  to  be  regarded  as  a  sufficient  delivery  which 
would  authorize  the  donee  to  take  possession  without  comnaitting  a  trespass:" 
Blake  v.  Jones,  Bail.  Eq.  (S.  C.)  141. 

^  Harris  v.  Clark,  3  N.  Y.  93. 


Delivery.  105 

said  Justice  Nott,  "  brought  to  the  view  of  the  court,  I 
have  not  been  able  to  discover  any  foundation  for  the 
distinction  made  between  a  donatio  causa  mortis  and  any 
other  parol  gift."  ^ 

131.  Delivery  Essential. — In  all  gifts  a  delivery  of 
the  thing  given  is  essential  to  their  validity ;  for  although 
every  other  step  be  taken  that  is  essential  to  the  validity 
of  a  gift,  if  there  is  no  delivery,  the  gift  must  fail.  In- 
tention cannot  supply  it ;  words  cannot  supply  it ;  actions 
cannot  supply  it ;  it  is  an  indisiDcnsable  requisite,  without 
which  the  gift  fails,  regardless  of  the  consequences.  In 
speaking  of  a  mortis  causa,  the  Supreme  Court  of  South 
Carolina  said  :  "  From  the  nature  of  the  donatio,  it  is  ap- 
parent that  the  infallible  test,  which  must  distinguish  it 
from  a  testamentary  gift,  is  delivery,  change  of  dominion 
in  pi'Oisenti.  Without  this  there  is  really  nothing  to  dis- 
tinguish it  from  an  ordinary  testamentary  bequest.^ 

1  M'Dowell  V.  Murdock,  1  Nott.  &  McC.  237  ;  Brinckerhoffi'.  Lawrence,  2  Saudf. 
Ch.  400 ;  S.  C.  2  N.  Y.  Leg.  Obs.  424.  "  Gifts  inter  vivos  and  gifts  causa  mortis  differ 
in  nothing,  except  tliat  the  latter  are  made  in  expectation  of  death,  become 
effectual  only  upon  the  death  of  the  donor,  and  may  be  revoked.  Otherwise,  the 
same  principles  apply  to  each :"  Dresser  v.  Dresser,  46  Me.  48;  Shackleford  r. 
Brown,  89  Mo.  546 ;  McCord  v.  McCord,  77  Mo.  166;  Walter  v.  Ford,  74  Mo. 
195  ;  Chevallier  v.  Wilson,  1  Tex.  161  ;  Young  v.  Young,  80  N.  Y.  422;  M:irtin 
V.  Funk,  75  N.  Y.  134;  Meriwether  v.  Morrison,  78  Ky.  572;  Conser  v.  Snowden, 
54  Md.  175 ;  Robson  v.  Jones,  3  Del.  Ch.  51 ;  Harris  v.  Clark,  3  N.  Y.  93. 

^Trenholm  v-  Morgan,  28  S.  C.  268;  Gammon  Theological  Society  r.  Bobbins, 
128  Ind.  85.  The  civil  law  did  not  require  a  delivery  :  Noble  v.  Smith,  2  Johns. 
52.  For  common-law  cases,  see  Grangiac  v.  Arden,  10  Johns.  293  la  lottery 
ticket);  Cook  v.  Husted,  12  Johns.  IBS;  Taylor  r.  Fire  Department,  1  Ed.  Ch. 
294  ;  Miller  v.  Jeffrees,  4  Gratt.  472;  Smith  v.  Hardy,  36  Wis.  417  ;  Delmotte  v. 
Taylor,  1  Redf.  417  ;  McCraw  v.  Edwards,  6  Ired.  Eq.  202.  Merely  saying  to 
the  donee,  "  I  g've  you  my  money  in  the  savings  bank,"  without  a  delivery  of 
the  deposit-book,  is  insufficient  to  make  the  gift  perfect' — for  a  want  of  delivery  : 
French  v.  Raymond,  39  Vt.  623 ;  Bradley  v.  Hunt,  5  G.  &  J.  54 ;  Taylor  v. 
Henry.  48  Md.  550 ;  S.  C.  .30  Am.  Rep.  486  ;  Pennington  v.  Gittings,  2  G.  &  J. 
208  ;  Hebb  v.  Hebb,  5  Gill,  506  ;  Conser  j'.Snowden,  54  Md.  175  ;  Haygood  v.  Mar- 
lowe, 51  Ala.  478;  Huddleston  v.  Huey,  73  Ala.  215  ;  ^Valker  v.  Crews,  73  Ala. 
412 ;  Brantley  v.  Cameron,  78  Ala.  72  ;  Hedges  v.  Hedges,  Free.  Ch.  269  ;  S.  C. 


I 


106  Gifts. 

132.  Reasox  for  Kule  Requtrixg  a  Delivery. — The 
reason  for  the  rule  requiring  a  delivery  is  obvious ;  it  is 
based  upon   "  grounds  of  public  policy  and  convenience, 

Gilb.  Eq.  12 ;  2  Eq.  Abr.  26o,  case  4  ;  2  Vern.  61o;  7  Viner.  Abr.  tit.  Custom  of 
London,  b.  8;  i-eversed  1  Brown  P.  C.  254;  .Spratley  v.  Wilson,  Holt  N.  P.  10; 
Hooper  V.  Goodwin,  Wils.  Ch.  212;  Murray  v.  Cannon,  41  Md.  4G6  (bank  deposit 
held  an  invalid  gift);  Cox  v.  Hill,  6  Md.  274;  Hitch  v.  Davis,  3  Md.  Ch.  266; 
Hanson  v.  Millelt,  55  Me.  1 84.  In  Virginia  a  statute  was  long  in  force  that  a  parol 
gift  of  slaves,  however  well  intended,  and  however  well  the  delivery,  was  void: 
Merrit  v.  Smith,  6  Leigli,  486  ;  Turner  v.  Turner,  1  Wash.  (Va.)  139  ;  Jordan  v.  Mur- 
ray, 3  Call.  85 ;  Spires  v.  W^illison,  4  Cranch.  39S  ;  Ward  v.  Audland,  8  Beav.  201 ; 
Scott  I'.  Reed,  25  Atl.  Rep.  604;  Peeler  v.  Guilkey,  27  Tex,  355  ;  Ewing  v.  Swing, 
2  Leigh,  337;  Sterling  n  W^ilklnson,  83  Va.  791 ;  Lee  v.  Luther,  3  Wood  &  M, 
519;  Patterson  v.  Williams,  Lloyd  &  Goold,  Ir.  Ch.  Cas.  95;  Teague  v.  Griffin,  2 
N.  &  McC.  93 ;  Reid  v.  Colcock,  1  N.  &  McC.  592 ;  Reed  v.  Spaulding,  42  N.  H. 
114;  Dilts  V.  Stevenson,  17  N.  J.  Eq.  407  ;  Allen  v.  Cowan,  23  N.  Y.  502;  Martin 
V.  Funk,  75  N.  Y.  134  ;  Young  v.  Young,  SO  N.  Y.  422  ;  Jackson  v.  Street  R.  W.  Co., 
88  N.  Y.  520  (reversing  15  J.  &.  S.  85) ;  Neufville  v.  Thomson,  3  Ed.  Ch.  92 ;  New- 
man V.  W^ilbourne,  1  Hill  (S.  C),  Eq.  10 ;  Cordery  v.  Zealy,  2  Bailey  L.  205  ;  An- 
derson V.  Belcher,  1  Hill  (S.  C),  L.  246;  Bedell  v.  Carll,  33  N.  Y.  581 ;  Fulton  v. 
Fulton,  48  Barb.  581 ;  Hackney  v.  Vrooman,  62  Barb.  650;  Keniston  v.  Sceva,  54 
N.  H.  24;  Montgomery  v.  Miller,  3  Redf.  151;  Banks  v.  Marksberry,  3  Litt.  275; 
Kirkpatrick  v.  Finney,  30  La.  Ann.  223.  Where  a  witness  testifies  that  the  donor 
■while  sick,  "  requested  me  to  take  charge  of  his  effects,  consisting  of  bank-book, 
money,  and  assignments  of  mortgages  and  deeds,  and  other  papers,  and  requested 
me  to  hold  tliein  in  trust  for  him  until  he  got  well ;  and  if  he  should  die  he  re- 
qnested  me  to  transfer  them  to  his  daughter  Emma  for  her  use;''  and  "that  was 
the  condition  I  received  them  on  the  7th  of  May;  I  was  to  keep  them  in  trust 
for  him,  and  if  he  lived  and  got  well,  I  was  to  return  all  his  jji-operty  to  him  ; 
and  if  he  died,  I  was  to  give  it  to  his  daughter  Eusma;''  and  it  was  admitted 
"  that  the  bank-book  offered  in  evidence  was  the  same  bonk  delivered  to ''  the 
witne-s;  it  was  held  tluit  the  evidence  did  not  show  a  delivery  to  the  witness: 
Daniel  v.  Smith,  64  C.il.  346.  We  believe  this  deLi.-^inn  is  incorrect.  There  is 
no  jury  in  Christendom,  of  intelligent  men  that  would  not  have  reached  the  con- 
clusion that  there  was  an  actual  delivery;  and  in  so  doing  they  would  have  only 
ad  )ptcd  a  natural  view  of  every -day  language  and  experience.  The  case  is  made 
to  hinge  upon  this  point  alone.  Afterward  upon  a  second  appeal  it  was  de- 
cided that  the  gift  was  not  valid,  for  tlie  reason  that  the  donor  liad  received  tlie 
ri^ht  to  use  so  much  of  the  fund  given  as  lie  might  need,  though  none  of  it  was 
u>ed.  This  is  tenable  ground,  and  sufficient  to  show  that  dominion  over  the  fund 
was  not  relinquished :  Daniel  v.  Smith,  75  Cal.  548.  The  declaration  of  .1.  that 
hi!  had  given  a  slave  to  B.  and  then  hireil  it  from  him,  without  a  delivery  of  the 
slave,  is  insufficient  to  perfect  a  parol  gift:  Bryant  v.  Ingraham,  16  Ala.  116.  See 
generally  on  delivery,  Jones  v.  Deyer,  16  Ala.  221  ;  Stallings  v.  Finch,  25  Ala. 
618;    Hunley   i:   Hunley,   15   Ala.   91;    O'Brien  v.  O'Brien,   4  Ontario,  450; 


Delivery.  107 

and  to  prevent  mistake  and  imposition."  ^  Such  gifts 
open  the  door  for  fraud  and  perjury  ;  and  as  these 
gifts  are  usually  claimed  upon  parol  evidence,  it  is  dif- 
ficult to  meet  and  overthrow  such  claims,  when  the  alleged 

Brunson  v.  Branson,  Meigs,  630 ;  Dunbar  v.  Woodcock,  10  Leigh.  628  (bond)  ; 
Payne  v.  Powell,  5  Bush.  248  ;  Brown  v.  Brown,  4  B.  Mon.  535  ;  Poullain  v.  Poul- 
lain,  79  Ga.  1 1  ;  Evans  v.  Lipscomb,  31  Geo.  71 ;  Noble  v.  Smith,  2  Johns.  52 ; 
Grangiac  v.  Ardeii,  10  Johns.  293 ;  Little  v.  Willets,  55  Barb.  125 ;  Cooper  v.  Burr, 
45  Barb.  9 ;  Hunter  v.  Hunter,  19  Barb.  631  ;  Huntington  v.  Gilmore,  14  Barb. 
243 ;  Doering  v.  Kenamore,  86  Mo.  588  ;  McCord  v.  MoCord,  77  Mo.  166  ;  Trough's 
Est.,  75  Pa.  >St.  115.  A  bought  a  piano  on  agreement  that  she  was  to  have  tlie 
title  when  she  paid  for  it.  She  died  before  completing  full  payment,  and  after 
her  death  her  administrator  paid  off  the  debt.  Before  she  died  she  sent  the 
piano  to  B  as  a  gift.  Held,  a  valid  gift:  Nicholson  v.  Thomas,  8  W.  N. 
Cas.  195.  See  generally.  Carter  v.  Buckingham,  1  Handy,  395;  Armitage 
V.  Mace,  96  N.  Y.  538;  S.  C.  16  J.  &  S.  107.  When  a  gift  of  a  chattel  is 
found  or  stated  in  a  case,  a  delivery  is  presumed  ;  and  it  will  be  presumed  that 
tlie  donee  cuntinued  in  possession  until  the  contrary  is  shown  :  Spiers  v.  Alexan- 
der, 1  Hawks.  67  ;  Caldwell  v.  W^ilson,  2  Speer  Eq.  75.  Owing  to  the  fact  that 
the  difference  between  the  common  and  civil  law  with  reference  to  the  delivery 
of  gifts  has  not  been  observed,  an  error  has  crept  into  a  few  cases  with  respect  to 
the  necessity  of  a  delivery.  In  a  note  to  the  case  of  Lunn  v.  Thornton,  1  C.  B. 
379,  Manning,  J.,  says  :  "  With  respect  to  donations  inter  vivos,  gifts  by  parol  are 
revocable  and  incomplete,  until  acceptance  {i.  e.,  acquiescence  in  the  gift)  by  the 
donee,  but  gifts  by  deed  are  perfect  and  complete,  and  vest  the  property  in  the 
donee,  until  disclaimer  (which  disclaimer  may  be  by  parol)  ;  and  after  acceptance, 
in  the  former  case,  and  until  disclaimer  in  the  latter,  the  property  vests  in  the 
donee,  without  any  delivery."  Jn  Flory  v.  Denny,  7  Excli.  581,  Parke,  B.,  aji- 
proves  this  language.  Similar  language  was  used  in  a  note  to  London,  etc.,  K.  Vt'. 
Co.  V.  Fairclongh,  2  M.  &  Gr.  674,  691,  and  in  the  argument  to  W^inter  v.  Winter, 
4  L.  T.  N.  S.  ''39.  The  Canadian  Common  Pleas  followed  these  decisions,  hold- 
ing that  it  is  sufficient  to  complete  such  a  gift  that  the  conduct  of  the  parties 
should  show  that  the  ownership  of  the  chattel  had  been  changed  :  Queen  v.  Car- 
ter, 13  C.  P.  611  ;  and  this  latter  case  was  followed  in  Viet  v.  Viet,  34  Q.  B. 
(Can.)  104,  thotigh  the  gift  was  probably  good  without  resorting  to  such  extreme 
language.  But  the  Canadian  cases  have  been  discredited  in  that  country  :  Travis 
'('.  Travis,  12  Ont.  App.  438,  affirming  8  Ont.  516.  But  see  Danby  v.  Tucker  31 
W.  E.  578  ;  Reeves  v.  Capper,  5  Bing.  N.  C.  56  ;  S.  C.  6  Scott,  877  ;  2  Jur.  1067  ; 
Bourne  t'.  Fosbrookc,  18  C.  B.  N.  S.  515  ;  S.  C.  34  L.  J.  C.  P.  164  ;  11  Jur.  N.  S.  202. 
Seethe  recent  English  case  of  Cochrane  v.  Moore,  25  Q.  B.  Div.  57  ;  S.  C.  59  L. 
J.  Q.  B.  377  ;  63  L.  T.  153 ;  38  W.  R.  538  ;  54  J.  P.  804 ;  6  T.  L.  R.  296.  In  the 
case  of  a  gift  mortis  causa,  the  delivery  must  be  before  the  death  of  the  donor :  Ges- 
cheidt  V.  Drier,  20  N.  Y.  Supp.  11. 

1  Noble  V.  Smith,  2  Johns.  52  ;  Harris  v.  Clark,  3  N.  Y.   93,  113  ;  Delmotte  v. 
Taylor,  1  Redf  417. 


108  Gifts. 

donor  is  dead,  unless  a  delivery  to  the  donee  is  made  an 
absolute  and  requisite  test  in  determining  whether  or  not  a 
gift  was  actually  consummated — not  intended  but  con- 
summated.^ 

^  Brinckerhoff  V.  Lawrence,  2  Sandf.  Ch,  400;  Chevaliier  r.  Wilson,  1  Tex. 
161 ;  Dickerchied  v.  Exchange  Bank,  28  W.  Va.  340.  In  North  Carolina  it  was 
ruled  that  the  reason  a  delivery  was  required  was  in  order  to  identify  the 
property,  and  that  it  might  answer  the  purposes  of  notoriety  ;  but  when  the 
identity  could  be  proved,  a  delivery  was  not  necessary  :  Arrington  v.  Arrington, 
1  Hay.'l. 

The  entire  subject  has  been  discussed  at  considerable  length  by  Fry,  L.  J., 
in  a  recent  case,  involving  an  examination  of  many  of  the  old  authorities.  Said  he : 
"  In  Bracton's  day  seisin  was  a  most  important  element  of  the  law  of  property  in 
land  ;  and,  however  strange  it  may  sound  to  jurists  of  our  day  and  country, 
tiie  lawyers  of  that  day  applied  the  term  as  freely  to  a  pig's  house  as  to  a  manor 
or  a  field.  At  that  time  the  distinction  between  real  and  personal  property  had 
not  grown  up  :  the  distinction  then  recognized  was  between  things  corporeal  and 
things  incorporeal ;  no  action  could  then  be  maintained  on  a  contact  for  the  sale 
of  goods,  even  for  valuable  consideration,  unless  under  seal ;  the  distinction  so 
familiar  to  ns  now  between  contracts  and  gifts  had  not  fully  developed  itself. 
The  law  recognized  seisin  as  the  common  incident  of  all  property  in  corporeal 
things,  and  tradition  or  the  delivery  of  that  seisin  from  one  man  to  another  as 
essential  to  the  transfer  of  the  property  in  tliat  thing,  whether  it  were  land  or  a 
horse,  and  whether  by  way  of  sale  or  of  gift,  and  whether  by  word  of  mouth  or 
ofdeedunderse.il.  This  necessity  for  delivery  of  seisin  has  disappeared  from  a 
large  part  of  the  transactions  known  to  our  law  ;  but  it  has  survived  in  the  case 
of  feoffments.  Has  it  also  survived  in  the  case  of  gifts?"  After  a  review  of 
many  old  authorities  and  cases  he  says:  "  This  review  of  the  authorities  leads  us 
to  conclude  that  according  to  the  old  law  no  gift  or  grant  of  a  chattel  was  effectual 
to  pass  it  whether  by  parol  or  by  deed,  and  whether  with  or  without  considera- 
tion unless  accompanied  by  delivery ;  that  on  that  law  two  exceptions  have  been 
granted,  one  in  the  case  of  deeds,  and  the  other  in  that  of  contracts  of  sale  where 
the  intention  of  the  parties  is  that  the  property  shall  pa'^s  before  delivery ;  but 
that  as  regards  gifts  by  parol,  the  old  law  was  in  force  when  Irons  v.  Smallpiece 
[2  B.  &  A.  551 J  was  decided ;  that  that  case  therefore  correctly  declared  the  ex- 
isting law ;  and  that  it  has  not  been  overruled :"  Cochrane  v  Moore,  25  Q.  B. 
Div.  57 ;  S.  C.  59  L.  J.  Q.  B.  377  ;  63  L.  T.  153;  38  W.  R.  588  ;  54  J.  P.  804 ;  6 
T.  L.  R.  296. 

"Upon  long  consideration  I  hare  come  to  the  conclusion  that  actual  delivery 
in  the  case  of  a  'gift'  is  more  than  evidence  of  the  existence  of  the  proposition 
of  law  which  constitutes  a  gift,  and  I  have  come  to  the  conclusion  that  it  is  a 
part  of  the  proposition  itself.  It  is  one  of  the  facts  which  constitute  the  proj)0- 
sition  that  a  gift  has  been  made.  It  is  not  a  piece  of  evidence  to  prove  the 
existence  of  the  proposition;  it  is  a  necessary  part  of  the  proposition,  and,  as 
such,  is  one  of  the  facts  to  be  proved  by  evidence :"   Lord  Esher,  M.  R.,  in 


Delivery.  109 

133.  Mere  Intention  Caxnot  Take  the  Place  of  a 
Delivery. — Mere  intention,  however  clear  or  hoAvever  em- 
j)hatieally  and  publicly  expressed,  can  never  take  the  place 
of  a  delivery,  either  constructive  or  actual.  Intention  to 
give  is  essential  to  the  validity  of  every  gift,  but  it  is  only 
one  of  the  requisites  to  vest  the  title  to  the  thing  given  in 
the  donee.  But  a  clearly  expressed  intention,  especially 
if  accompanied  by  acts  corroborating  it,  may  aid  an  am- 
biguous delivery,  which  would  otherwise  fail ;  and  so  acts 
indicating  a  clear  intent  to  give  may  also  aid  an  ambiguous 
delivery,  though  not  to  the  extent  that  a  clearly  expressed 
intention  may.  So,  too,  a  clearly  expressed  intent,  especially 
if  accompanied  by  acts  corroborating  it,  will  more  effect- 
ually aid  a  delivery  which  has  been  made  as  complete  as 
the  condition  of  the  parties  or  the  circumstances  of  the 
transaction  will  at  the  time  permit.^  But  a  court  will 
not  hokl  as  discharged  a  debt  due  a  decedent,  on  the  mere 
ground  of  his  intention  not  to  enforce  it,  or  of  his  treat- 
ing it  as  not  obligatory.^ 

134.  Delivery  Must  Be  Sufficient  to  Pass  Title — 
Test. — A  delivery  to  render  a  gift  good  must  be  such  that 
the  title  passes  to  the  donee  ;  if  it  does  not  pass,  the  gift  is 
void.    In  the  instance  of  a  donatio  mortis  causa,  the  vesting 

Cochrane  v.  Moore,  25  Q.  B.  Div.  57,  75 ;  S.  C.  59  L.  J.  Q.  B.  377  ;  63  L.  T. 
533;  33  W.  R.  588 ;  54  J.  P.  804. 

If  the  donee  obtain  possession  of  the  subject-matter  of  the  gift,  supposing  there 
is  a  valid  gift,  he  is  not  liable  for  interest  (in  case  it  is  a  fund)  on  the  fund  given, 
even  though  he  retain  it  a  long  time :  Hooper  v.  Goodwin,  1  Swanst.  486. 

^  Devol  V.  Dye,  lliS  Ind.  321;  Gammon  Theological  Seminary  i'.  Robbins,  128 
Ind.  85;  Walker  v.  Crews,  73  Ala.  412;  Delmotte  v.  Taylor,  1  Redf.  417;  Dick- 
ersclieid  v.  Exchange  Bank,  28  W.  Va.  340;  Hitch  v.  Davis,  3  Md.  Ch.  266; 
Hunter  v.  Hunter,  19  Barb.  631. 

^Robson  r.  Jones,  3  Del.  Ch.  51  ;  Lee  v.  Luther,  3  Wood  &  M.  519;  Trough's 
Estate,  75  Pa.  St.  115;  Carter  v.  Buckingham,  1  Handy,  395;  Jones  v.  Deyer, 
16  Ala.  221 ;  Donover  v.  Argo  79  la.  574.  Something  by  way  of  delivery  must 
be  done  to  show  that  tlie  donor's  intention  has  been  carried  into  effect:  Tomlinson 
V.  Ellison,  104  Mo.  105. 


110  Gifts. 

of  the  title  is,  of  course,  conditional ;  bat  the  delivery  must 
be  as  complete  as  if  it  were  a  donatio  inter  vivos}  Of  a 
gift  inter  vivos  it  was  said  :  "  The  consummation  of  every 
parol  gift  is  delivery.  There  must  be  an  actual  transmu- 
tation of  possession  and  property ;  and  the  real  question 
in  all  such  cases  is  whether  the  donor  has  parted  with  his 
dominion  over  it."  ^  In  an  early  Texas  case  it  was  said  : 
"  The  test  of  delivery — of  the  consummation  of  a  parol 
gift  of  a  chattel — is  the  change  of  property — the  imme- 
diate right  to  entire  dominion  over  the  subject  of  the 
gift — a  perfect  title,  which  is  as  good  against  the  donor 
as  any  one  else.  .  .  .  The  change  of  property  must  in  all 
cases  be  complete  at  the  instant  of  the  gift.  The  right 
which  had  been  in  the  donor  must  eo  instanti  of  the  gift 
be  vested  in  the  donee."  ^ 

135.  Parting  with  Dominion  Oyer  the  Thing 
Given. — It  is  a  common  remark  that  to  make  a  gift  valid 
the  donor  must  make  such  a  delivery  as  will  give  the 
donee  the  present  dominion  over  the  property  intended 
to  be  given.*  This  is  no  doubt  true  ;  but  this  is  nothing 
more  than  the  assertion  that  the  title  must  pass  to  the 
donee,  for  we  understand  that  if  the  right  of  disposal  in 
the  donor  is  lost  to  him,  then  he  has  parted  with  his  do- 
minion over  the  article  given,  although  he  may  have  re- 
gained the  physical  possession  of  it,  either  with  or  without 
the   consent  of  the  donee."     An  old  case,  however,  will 

^Gilmore  v.  Whiteside«,  Dudley  Eq.  14. 

'^M'Dowell  V.  Murdock,  1  Nott.  &  McC.  237. 

^Chevallier  i'.  Wilson,  1  Tex.  161 ;  Dickerschied  v.  Exchnnge  Bank,  28  W.  Va. 
340 ;  Walker  v.  Crews,  73  Ala.  412  ;  Pennington  v.  Gittings,  2  G.  &  J.  208 ;  Gart- 
side  V.  Pahlraan,  4o  Mo.  App.  160. 

*  (lilmore  v.  Whitesides,  Dudley  Eq.  14. 

MValker  v.  Crews,  73  Ala  412;  Devol  r.  Dye,  123  Ind.  321.  "The  owner 
must  part  with  his  dominion  and  cimtrol  of  the  article  before  the  gift  takes  effect ; 
mere  words  alone  convey  no  title,  and  a  present  gift  must  be  intended  ;  the  donor 
must  intend  to  part  with  the  title  and  control  of  the  thing  at  the  time  of  making 


Delivery.  Ill 

illustrate  the  distinction  between  the  words  "  j^ossession  " 
and  "  dominion."  An  intestate  in  his  last  illness  ordered 
a  box  to  be  carried  to  the  house  of  the  defendant,  to  be 
delivered  to  her,  but  gave  no  directions  respecting  it,  nor" 
said  anything  about  giving  it  to  her.  On  the  next  day 
the  key  was  brought  to  the  intestate,  who  desired  it  to  be 
taken  back,  saying  that  he  should  want  a  pair  of  breeches 
out  of  it.  It  was  held  that  there  was  no  valid  gift,  the 
court  saying  :  "  In  the  case  of  a  donatio  mortis  causa, 
possession  must  be  immediately  given  ;  that  has  been 
done  here;  a  delivery  has  taken  place,  but  it  is  also 
necessary  that  by  parting  with  the  possession,  the  de- 
ceased should  also  part  with  the  dominion  over  it.  That 
has  not  been  done  here.  The  bringing  back  the  key  by 
her  the  next  morning  to  the  intestate,  and  his  declaration 
that  he  should  want  one  of  the  articles  of  his  apparel  con- 
tained in  it,  are  sufficient  to  show  that  he  had  no  inten- 
tion of  making  any  gift  or  disposition  of  the  box."  ^  So 
where  the  owner  of  a  slave,  having  previously  placed  it 
with  B,  told  him  that  if  he  never  called  for  it,  his  (the 
owner's)  wife  was  to  have  it,  and  afterward  died,  without 
calling  for  it,  and  made  no  disposition  of  it  by  will,  it 
was  held  that  there  was  no  gift,  for  the  reason  that 
the  donor  never  relinquished  his  dominion  over  the  slave." 

136.  Mere  Possession  by  Donee  Not  Sufficient. — 
A  delivery,  of  course,  results  in  placing  the  donee  in  the 

the  gift.  A  gift  to  take  effect  in  the  future  is  void  :"  Gammon  Theological 
Seminary  v.  Eobbins,  128  Ind.  85 ;  Sheegog  v.  Perkins,  4  Baxt.  273 ;  Penning- 
ton V.  Gittings,  2  G.  &  J.  208. 

^  Hawkins  v.  Blewitt,  2  Esp.  663. 

^  Ptallings  V.  Finch,  25  Ala.  518.  On  this  subject  see  Nasse  v.  Thoman,  39  Mo. 
App.  178 ;  Gartside  v.  Pahlman,  45  Mo.  App.  160 ;  Board  v.  Callihan,  33  W.  Va. 
209;  Frame  v.  Frame,  32  W.  Va.  463.  Where  a  decedent  expecting  to  die  shortly 
from  a  disease  possessing  liim,  a  short  time  before  his  death  handed  to  another  a 
certificate  of  deposit  for  safe  keeping,  requesting  him  to  see  that  the  dprodcnt's 
children  got  the  money  in  case  he  died,  it  was  held  that  there  was  no  valid  gilt,  be- 
cause of  a  lack  of  a  delivery:  Dunn  v.  German-American  Bank,  18  S.  W.  Eep.  1139. 


112  Gifts. 

possession  of  and  dominion  over  the  article  given  ;  but  his 
mere  possession  is  not  sufficient.  Speaking  of  a  gift  of 
certain  furniture  the  Surrogate  Court  of  New  York  city 
said :  "  In  respect  to  the  furniture,  there  was  a  change  of 
possession.  But  nothing  to  show  that  it  was  done  with 
the  knowledge  or  acquiescence  of  the  testator.  The  fact 
that  the  furniture  was  in  her  possession  before  his  death, 
is  not  of  itself  sufficient  to  warrant  the  presumption  that 
there  was  an  actual  delivery.  It  should  appear  that  she 
took  possession  of  it  with  the  knowledge  and  assent  of  the 
donor  ;  for  without  this,  nothing  is  shown  on  his  part  but 
the  intention  to  give,  which  is  not  enough."  ^  Possession 
to  render  a  gift  valid  must  be  of  such  a  character  as  to 
indicate  an  abandonment  of  dominion  by  the  former 
owner,  and  its  acquisition  by  the  possessor.^  A  wife  re- 
ceived a  banker's  draft  for  the  amount  of  a  legacy  given 
to  her  separate  use.  She  gave  the  draft  to  her  husband, 
who  paid  it  into  his  current  account,  and  on  the  same 
day  placed  it  upon  a  deposit  account  in  his  own  name, 
and  then  showed  his  wife  the  deposit  note.  Shortly  after 
this  he  died.  She  having  showed  that  she  never  intended 
to  give  up  the  control  of  the  money,  his  executors  were 
ordered  to  pay  her  the  amount  of  the  legacy.^ 

137.  Right  to  Use  Distinguished  from  Possession. — 
There  is  a  radical  distinction  between  the  right  to  use — the 
right  to  make  use  of — a  tiling  and  the  right  of  possession. 
The  right  to  use  an  article  confers  upon  the  person  hold- 
ing it  the  power  to  use  the  article  without  being  a  tres- 

>  Delmotte  t'.  Taylor,  1  Redf.  417  ;  Dunbar  v.  Dnnbar,  80  Me.  152;  Miller  v. 
Jeffreys,  4  Gratt.  472 ;  Dlckeschied  v.  Exchange  Bank,  28  W.  Va.  340  ;  Bigelow 
V.  Paton,  4  Mich.  170. 

^  Evans  v.  Lipscomb,  31  Ga.  71. 

■■  Greeny  v.  Carill,  4  Cb.  Div.  882;  S.  C.  46  L.  J.  Ch.  477  ;  Trimmer  v.  Darby, 
25  L.  J.  Ch.  424. 


Delivery.  113 

passer — a  wrong-doer — without  conferring  a  property  in 
the  thing ;  but  the  right  of  possession  gives  the  right  to 
control  the  article  even  as  against  the  actual  owner,  and 
is  such  a  right  as  gives  a  qualified  property  in  the  person 
entitled  to  it.  A  right  to  merely  use  an  article  does  not 
give  the  person  having  such  right  a  right  to  maintain 
an  action  in  trespass  against  one  injuring  it,  nor  replevin 
for  its  possession  ;  hut  a  i-ight  of  possession  gives  the  per- 
son having  the  right  full  authority  not  only  to  maintain 
an  action  in  trespass  but  also  in  replevin.  Two  Iowa 
cases  well  illustrate  this  distinction.  Thus,  a  donor  gave 
her  grandchild,  as  it  was  claimed,  a  piano,  which  was  in 
the  house  and  possession  of  the  donor.  The  donee  lived 
with  her  father,  who  lived  with  his  mother  in  her  family 
and  in  her  house.  The  grandchild  used  the  j^iano  after- 
ward, as  she  did  before.  About  six  months  before  any 
dispute  arose  about  the  piano,  the  son  and  his  family, 
including  the  grandchild,  moved  into  another  house,  but 
the  piano  remained  in  the  house  of  the  donor,  and  was 
there  when  levied  upon  by  the  creditors  of  the  donor. 
It  was  held  that  the  alleged  donee  had  the  right  to  use 
the  piano,  but  had  not  the  right  of  possession.^  The  other 
case  is  where  a  father  took  his  fourteen-year-old  child  to 
a  music  store,  and  bought  and  presented  to  her  a  piano. 
She  had  it  conveyed  to  his  house,  where  she  lived  as  a 
member  of  the  family;  but  the  bill  of  sale  for  it  was  made 
to  him,  and  he  executed  a  mortgage  on  the  instrument 
to  secure  the  purchase-money.  The  piano  was  put  in  his 
parlor,  where  it  remained  with  his  furniture  until  it  was 
levied  upon  by  his  creditors ;  but  from  the  time  of  its  de- 
livery at  the  house  until  levied  uj^on,  it  was  "  hers  exclu- 
sively, and  under  her  sole  and  exclusive  control,"  so  the 
court  found.     There  was  no  conveyance  in  writing  to  her 

iWilley  V.  Backus,  52  la.  401. 


114  Gifts. 

by  the  father,  nor  any  notice  of  her  ownership  put  on 
record ;  yet  the  court  hekl  that  she  had  not  only  the  riglit 
of  use  but  the  right  of  possession,  and  that  the  gift  was 
valid  as  against  his  subsequent  creditors.^ 

138.  Actual  and  Manual  Delivery. — The  adjective 
"  actual "  is  very  frequently  used  in  connection  with  the 
word  "  delivery,"  and  some  confusion  has  arisen  in  its 
use.  Thus  in  a  New  Hampshire  case  it  is  said  that 
"  without  actual  delivery  the  title  does  not  pass."  ^  Some 
confusion  has  arisen  from  the  use  of  this  word — some 
writers  and  courts  having  construed  it  to  mean  a  manual 
delivery.  But  by  the  phrase  "  actual  delivery  "  we  are  not 
to  understand  that  a  manual  delivery — the  handing  in 
person  of  the  subject-matter  of  the  gift  to  the  donee,  or 
the  handing  by  a  third  person,  at  the  request  of  the  donor 
and  in  the  latter's  presence,  of  such  subject-matter  to  the 
donee.  Such  a  transaction  is  not  to  be  understood  ;  but 
by  the  use  of  the  phrase  nothing  more  is  meant  than  such 
a  delivery  as  will  pass  the  title,  whether  that  be  a  manual 
or  a  symbolical  delivery.  In  a  few  cases,  however,  we 
shall  see  that  in  a  donatio  mortis  causa  a  manual  delivery 
is  required.^ 

139.  Actual,  Constructive,  or  Symbolical  De- 
livery.— In  some  of  the  older  cases,  especially  in  in- 
stances of  donationes  mortis  causa,  it  is  declared  that  there 
must  be  an  actual  delivery  ;  but  this  rule  has  long  since 
been  abrogated.  The  delivery  may  be  either  actual,  con- 
structive, or  symbolical ;  and  the  one  is  as  effectual  to  pass 
the  title  as  the  otlier.^     In   a  Texas  case  it  was  said : 

^  Piersoti  v.  HeiFey,  19  la.  114.     See  Section  IfiO. 

^  Reed  v.  Spaulding,  42  N.  H.,  p.  119. 

^  E^swein  v.  Seigling,  2  Hill  (S.  C),  CIi.  600.  The  Virginia  statute  has  no 
reference  to  gifis  mortis  cnusa:   Thomas  v.  Lewis,  15  S.  E.  Rep.  389. 

*  Devol  V.  Dye,  123  Iiid.  321 ;  Gammon  Theological  Seminary  v.  Robbins,  128 
Ind.  85;  Love  v.  Francis,  63  Mich.  181 ;  Dickeschied  v.  Exchange  Bank,  28  W. 


Delivery.  115 

"  Where  tlie  thing  is  incapable  of  actual  delivery,  or 
where  the  situation  of  the  parties,  or  the  circumstances  of 
the  case  will  not  admit  of  it,  it  may  be  symbolical  or  con- 
structive." ^  In  an  early  case  in  North  Carolina  a  gift, 
where  only  a  symbolical  delivery  was  made,  was  upheld. 
In  that  case  the  donor,  while  in  good  health  said  to  the 
donee,  a  child :  "  I  give  you  all  my  corn,  and  all  my 
hogs,  my  horse  Tinker,  and  my  negro  slave.  Here,  take 
of  the  corn  I  have  given  you."  And  he  gave  him  an 
ear  or  two  of  corn.  In  delivering  the  opinion  of  the 
court,  Taylor,  J.,  said  :  "  Where  the  things  given  are  not 
present  to  be  delivered,  a  symbolical  delivery  is  allowable 
by  the  law  of  this  country.  The  horse  was  in  the  yard 
and  might  have  been  delivered  ;  and  the  gift  is  clearly 
not  good  as  to  him.  The  corn,  hogs,  and  negro  were  not 
there,  but  two  or  three  miles  off.  As  to  them,  the  de- 
livery of  the  ear  of  corn  was  a  good  delivery,  if  delivered 
in  the  name  of  all."  ^  A  and  B  were  partners  in  a 
brewery,  in  which  a  clock,  the  property  of  either  A  or  of 
the  partnership,  was  used.  Four  mouths  prior  to  his 
death  A  told  a  witness  that  he  had  given  the  clock  to  C, 
and  at  the  request  of  A  the  witness  went  and  demanded 
the  clock  from  B,  who  said  he  could  not  give  it  on  that 
day,  but  would   in  three  days  after.     On  other  occasions, 

Va.  340;  Miller  v.  LePiere,  136  Mass.  20;  Eeid  v.  Colcock,  1  N.  &  McC.  592; 
Powell  V.  Leonard,  9  Fla.  359. 

^  Hillabrent  v.  Bower,  6  Tex.  45  ;  Arrington  v.  Arrington,  1  Hav.  1  (delivery  of 
a  dollar  instead  of  the  negro  given,  who  was  absent  in  another  State ;  held  a 
valid  gift)  ;  Poullain  i\  Poullain,  79  Ga.  11. 

^  We  have  given  the  entire  opinion:  Lavender  )•  Pritchard,  2  Hay.  293.  On 
a  second  trial  the  court  considered  that  there  was  only  a  delivery  of  the  corn  : 
Lavender  v.  Pritchard,  2  Hay.  337.  In  Gardner  v.  Parker,  3  Madd.  Ch.  102,  it 
wa=;  said  that  Snellgrove  v.  Bailey,  3  Atk.  214,  established  the  proposition 
that  a  delivery  of  a  mere  symbol  in  a  donatio  mortis  causa  was  not  a  sufficient 
delivery.  That  there  may  be  a  symbolical  gift  in  such  an  instance,  see  Phipps 
V.  Hope,  16  Ohio  St  586;  Hamor  v.  Moore,  8  Ohio  St.  239;  Taylor  v.  Kelly,  5 
Hun,  115. 


116  Gifts. 

both  before  and  after  the  death  of  A,  B  promised  to  give 
up  the  clock,  but  did  not  do  so.  Still  later  he  refused  to 
give  up  it  up.  It  was  held  that  the  promise  made  by  B 
to  give  up  the  clock  was  evidence  to  go  to  the  jury  of  his 
assent  to  the  disposal  of  the  clock,  if  it  were  partnership 
property ;  and  also  evidence  to  show  that  everything 
necessary  to  make  a  gift  effectual  had  been  done  by  A 
whether  the  clock  was  partnership  proj)erty  or  the  ex- 
clusive property  of  A.^ 

140.  The  Situation  of  the  Subject-Matter  of  the 
Gift  Must  be  Consideeed. — In  determining  whether 
there  has  been  a  valid  delivery,  the  situation  of  the  sub- 
ject of  the  gift  must  be  considered.  Thus  if  it  is  actually 
present,  and  capable  of  delivery  without  serious  effort,  it 
is  not  too  nmcli  to  say  that  there  must  be  an  actual  de- 
livery, although  the  donor  need  not  in  j^erson  or  by  agent 
hand  the  article  to  the  donee,  if  the  latter  assumes  the 
possession.  "  An  actual  delivery  has  never  been  required, 
other  than  such  as  the  nature  of  the  property  intended  to 
be  transferred  was  susceptible  of."  ^  "  The  rule,  we  think, 
has  been  greatly  modified  by  the  more  modern  decisions 
on  the  subject.  It  is  that  the  delivery  must  be  according 
to  the  nature  of  the  thing,  and  usually  that  means  accord- 
ing to  the  physical  nature  of  the  thing  to  be  delivered, 

^  Malone  v  Reynolds,  2  Fox  &  Smith  (Ir.)  59.  Doctrine  of  constructive  delivery 
recognized:  Stephenson  v.  King,  81  Ky.  425.  In  Bunn  v.  Markham,  as  reported 
in  Holt's  Nisi  Prius,  352,  it  was  said  that  in  a  donatio  mortis  causa  there  must  be 
an  actual  delivery  of  the  article  where  it  is  capable  of  delivery,  and  a  symbolical 
delivery  would  not  be  sufficient. 

In  Alabama,  after  a  review  of  many  cases,  the  court  formulates  the  following 
rule:  "  Delivery,  actual  or  constructive,  is  essential  to  the  validity  or  consumma- 
tion of  a  parol  gift  of  a  chattel;  and  where  the  delivery  is  constructive,  it  must 
clearly  appear  that  the  donor  lias  parted  with  his  dominion  over  the  thing,  in 
order  to  pass  the  title  to  the  donee  and  aflTectuate  the  gift :"  Bates  v.  Vary,  40 
Ala.,  p.  434. 

'^  Gilraore  v.  Whitesides,   Dudley  Eq.  14. 


Delivery.  117 

such  as  the  bulk  or  weight,  and  does  not  refer  to  the  lo- 
cality of  the  thing."  ^ 

141.  Article  Incapable  of  Delivery. — So  strongly 
do  the  early  cases  insist  upon  an  actual  delivery  to  com- 
plete a  gift,  it  was  said  that  if  the  thing  given  is  incapable 
of  a  delivery  there  can  be  no  gift  made  of  it.^  But  the 
modern  cases  hold  that  in  such  an  instance  if  there  be 
some  act  equivalent  to  a  delivery  it  is  sufficient." 

142.  CoxDiTioxAL  Delivery. — A  gift  to  be  valid  must 
not  only  be  delivered,  but  the  delivery  must  be  uncondi- 

1  Stephenson  v.  King,  81  Ky.  425  ;  50  Am.  Rep  172  ;  Devol  v.  Dye,  123  Ind. 
321.  "  Wliile  a  delivery  is  absolutely  necessary  to  the  validity  of  a  gift,  yet  it  is 
not  necessary  that  ihere  should  be  a  manual  delivery  of  the  thing  given.  It  will 
be  sufficient  if  the  delivery  be  as  complete  as  the  thing  and  the  circumstances  of 
the  parties  will  permit.  If  the  article  given  be  too  bulky  to  admit  of  a  manual 
delivery,  but  there  is  a  surrender  of  the  possession  and  control  by  the  donor  to 
the  donee,  with  a  clear  expression  of  the  intention  of  the  donor  to  give,  and  the 
donee  accepts  the  gift,  and  assumes  control  of  the  property,  it  will  be  sufficient :" 
Gammon  Theological  Seminary  v.  Robbins,  128  Ind.  85  ;  Ross  v.  Draper,  55  Vt. 
404;  Devol  v.  Dye,  123  Ind.  321  ;  Farquharson  v.  Cave,  2  Colly.  356  ;  Reddel  v. 
Dobree,  10  Sim.  244.  A  and  B,  brothers,  buried  a  certain  sum  of  silver,  belong- 
ing to  them  equally.  B  died  and  C  became  his  executor.  Thirteen  years  after- 
ward A,  who  was  old  and  unmarried,  told  C  that  he  wanted  his  brother  D  to 
have  his  portion  of  the  buried  treasure;  and  that  after  his  death  it  must  be  dug 
up  and  equally  divided  between  D  and  himself  as  executor.  A  made  the  same 
statement  and  direction  to  D.  Afterward  A  and  C  concluded  to  dig  up  the 
treasure,  without  waiting  for  the  former's  death.  They  sent  for  D,  and  he  and  C 
made  search  for  the  money,  which  was  in  two  boxes,  but  only  found  one,  until  A 
came  and  pointed  out  the  place  of  its  burial.  Both  boxes  were  carried  jointly  to 
the  house  occupied  by  A  and  C,  near  by.  Six  days  after  A  died,  and  the  day 
after  his  burial  C  and  D  divided  the  money  equally.  It  was  held  that  D  had  a 
good  title  to  the  money,  the  act  of  sending  him  to  the  place  of  burial  of  the 
money,  to  dig  it  up,  being  a  sufficient  delivery :  Carradine  v.  Carradine,  58  Miss. 
286;  Dickeschied  v.  Exchange  Bank,  28  W.  Va.  340;  Hitch  v.  Davis,  3  Md.  Ch. 
266;  Powell  v.  Leonard,  9  Fla.  359  ;  Beaver  v.  Beaver,  117  N.  Y.  421  ;  McKenzie 
V.  Harrison,  120  N.  Y.  260;  Porter  v.  Gardner,  60  Hun,  571  ;  Miller  v.  Neff  33 
W.  Va.  197.  For  a  delivery  of  colts  pastured  on  the  farm  of  the  donor  but 
which  was  occupied  by  the  donee,  see  Porter  v.  Gardner,  60  Hun,  571. 

^  Pennington  v.  Gittings.  2  G.  &  J.  208  ;  Adams  v.  Hayes,  2  Ired.  L.  361. 

'  Deppe  V.  People,  9  Bradw.  349.  See  Cochrane  v.  Moore.  25  Q.  B.  Div.  57  ;  S. 
C.  59  L.  J.  Q.  B.  377  ;  63  L.  T.  153 ;  38  W.  R.  588 ;  54  J,  P.  804 ;  6  T.  L.  R. 
296. 


\^ 


118  Gifts. 

tional.  It  must  "  be  delivered  absolutely  and  uncondi- 
tionally." Thus  where  the  donor  enlisted  in  the  military 
service  during  the  war  of  the  Kebellion,  and  a  short  time 
before  starting  for  the  army,  in  which  he  died,  said  to  a 
friend,  in  regard  to  a  gun  which  he  had  loaned  that 
friend,  "  Well,  if  I  never  return,  you  may  keej)  the  gun 
as  a  present  from  me  ;"  it  was  held  that  these  facts  made 
J  v    neither  a  sjift  intei'  vivos  nor  jnortis  causa} 

143.  Time  of  Delivery. — It  is  not  essential  that  a 
delivery  be  made  at  the  time  the  words  of  gift  are  used, 
or,  in  other  words,  at  the  time  the  gift  is  made.  If  the 
article  given  is  already  in  the  possession  of  tlie  donee, 
then  no  delivery  is  necessary ;  so  the  delivery  may  fol- 
low at  any  time  before  the  death  of  the  donor,'^  and  be- 
fore he  revokes  the  gift.^  But  this  rule  has  been  vigor- 
ously denied  in  the  case  of  a  donatio  mortis  causa,  and 
a  delivery  required  at  the  very  time  of  making  the 
gift.  Indeed,  the  weight  of  authority  may  be  said  to 
still  follow  the  rule  requiring  an  actual  and  present 
delivery."^ 

144.  Future  Delivery. — A  delivery  to  pass  the  title 
in  the  future  is  ineffectual,  as  much  so  as  if  there  had 
been  no  attempt  to  make  a  delivery.  Thus,  if  the  prop- 
erty is  delivered  to  a  third  person,  with  instructions  to 
deliver  it  to  the  intended  donee  upon  the  haj^pening  of  a 
future  event,  and  in  the  meanwhile  the  donor  retain  con- 

^  Smith  V.  Dorsey,  38  Tnd.  451. 

^  Diipuy  V.  Dupont,  1 1  La.  Ann.  226. 

^Carradiiie  v.  Carradine,  58  Miss.  286;  "Wing  v.  Merchant,  57  Me.  383;  Gilles- 
pie V.  Burleson,  28  Ala.  551  ;  Evans  v.  Lipscomb,  31  Ga.  71,  qualifying  Aiidersun 
V.  Baker,  1  Ga.  59o;  Grant  v.  Grant,  34  Beav.  623;  S.  C.  34  L.  J.  Ch.  641 ;  11 
Jur.  N.  S.  787  ;  13  L.  T.  721  ;  13  W.  R  1057  ;  Alderson  v.  Peel,  64  L.  T.  645  ;  S. 
C.  7  T.  L.  R  418. 

*Dicheschied  v.  Exchange  Bank,  28  W.  Va.  340.  Proof  of  possession  merely 
is  no  proof  of  tiiC  lime  of  delivery  :   Cole  v.  Luca.s,  2  La.  Ann.  946. 


Delivery.  119 

trol  over  the  gift,  the  gift  is  ineffectual.^     Of  course,  in  the 
instance  of  a  gift  moytis  causa,  the  statement  is  not  strictly 
true ;  for  there  the  donor  may  at  any  time  revoke  the  gift, 
and  to  this  extent  the  donee  is  the  agent  of  the  donor. 
In  such  an  instance,  on  the  request  or  command  of  the 
donor,  the  bailee  may  with  perfect  safety  redeliver  the 
property  to  the  donor  without  incurring  any  liability  to 
the  donee.     But  where  at  the  time  a  note  for  money 
loaned  was  executed,  payable  three  years  after  date,  with 
interest  payable  annually,  the  j)ayee  executed  and  deliv- 
ered to  the  payor  a  writing  stipulating  that,  if  the  payee 
should  not  collect  the  note  in  her  lifetime,  her  representa- 
tives should  surrender  it  to  the  payor,  adding  "as  I  intend 
it  as  a  gift  from  me  to  him,"  and  the  payee  retained  the 
possession  of  the  note  during  her  lifetime,  but  died  within 
a  year  after  the  execution  of  the  writings,  it  was  consid- 
ered that  there  was  no  valid  gift,  for  the  reason  that  there 
had  been  no  delivery,  and  the  writing  she  executed  only 
contained  a  promise  to  give.^     So,  where  the  payee  of  a 
note  j3laced  it  in  the  hands  of  a  third  ]3arty  and  directed 
the  maker  to  pay  it  to  such  third  party  on  the  payee's 
decease,  it  was  held  that  there  was  no  gift,  even  if  such 
third  person  retained   it  until  the  payee's  death.^     But 
where  a  testator  directed  his  executor  to  draw  a  sum  of 
money  from  his  bank  and  divide  it  among  his  servants 
according  to  directions  given,  and  the  executor  obtained 
the  money,  notified  both  the  testator  and  the  servants  of 
the  fact,  but  delayed    payment   until   the  death  of  the 
former,  it  was  held  that  there  was  a  valid  gift.*     Yet 

^Devol  I'.  Dye,  123  Ind.  321 ;  Walker  v.  Crews,  73  Ala.  412;  Knott  v.  Hogan, 
4  Met.  (Ky.)  99.  If  the  gift  is  in  writing,  with  all  the  formalities  of  a  will,  it  may- 
be probated  as  a  will,  and  the  gift  will  be  valid:  Bonnafee  v.  Bonnafee,  Manning 
(L.i.),  3.'^9  ;  Phipps  v.  Hope,  lO^Oliio  St.  586;  Horn jv^Gartman,.!  Fla.  63 

■•'Knott  V.  Hogan.  4  Met.  (KyT)  99 ;  Trough's  Estate,  75  Pa.  St.  115. 

3  Craig  V.  Kittredge,  46  N.  H.  57  ;  Sims  v.  Walker,  8  Humph.  502. 

*  Barclay's  Estate,  2  W.  N.  C.  447;  S.  C.  33  Leg.  Int.  lOS.  See  Eichardson  v. 
Seevers,  84  Va.  259. 


120  Gifts, 

where  the  donor  handed  to  B,  a  few  days  before  his  death 
and  while  in  good  liealth,  a  box  with  a  letter  addressed 
to  C,  and  requested  B  to  forward  the  box  to  C  "  in  case 
anything  should  happen"  to  him,  the  donor,  and  in  a  few 
days  thereafter  the  donor  committed  suicide,  Avhereupon 
B  delivered  the  box,  with  its  contents  and  the  letter, 
to  C,  it  was  held  that  there  was  not  a  valid  gift/ 

145.  The  Conditiojv  and  Intention  of  the  Donor 
Must  be  Consideeed — Arbitraey  Enfoecement  of  the 
BuLE. — Not  only  is  the  application  of  the  rule  requiring 
a  delivery  to  be  mitigated  and  applied  according  to  the 
situation  of  the  subject  of  the  gift,  but  the  conditions  and 
intention  of  the  donor  at  the  time  of  making  the  gift  must 
be  considered ;  and  this  is  especially  true  of  a  gift  mortis 
causa.  "  The  intention  of  the  donor,"  says  the  Supreme 
Court  of  Indiana,  "  in  peril  of  death,  when  clearly  ascer- 
tained and  fairly  consummated,  within  the  meaning  of  well- 
established  rules,  is  not  to  be  thwarted  by  a  narrow  and 
illiberal  construction  of  what  may  have  been  intended  for 
and  deemed  by  him  a  sufficient  delivery.  The  rule  which 
requires  delivery  of  the  subject  of  the  gift  is  not  to  be  en- 
forced arbitrarily."  ^  Thus  where  the  donor  lived  alone 
and  when  taken  very  ill  wrote  on  a  slate  that  she  desired 
the  donee  to  have  all  her  personal  property,  and  of  her 
intention  there  was  no  doubt ;  and  the  slate  was  found  by 
her  bedside  at  the  time  she  was  discovered  dead ;  it  was 
held  that,  as  she  had  done  all  that  was  possible  for  her  to 

1  Earle  r.  Botsford,  23  N.  B.  407.  Gift  not  to  take  effect  until  after  death ;  not 
valid:  Basket  v.  Hassell,  107  U.  S.  602;  Daniel  t.  Smith,  75  Cal.  548;  S.  C.  64 
Cal.  346;  Trough's  Estate,  75  Pa.  St.  115.  Mortgage  to  be  cancelled  when  donor 
dies :  Scales  v.  Maude,  6  DeG.,  M.  &  G.  43 ;  S.  C.  25  L.  J.  Ch.  433 ;  1  Jur.  N.  S. 
1147. 

^  Devol  V.  Dye,  123  Ind.  321  ;  Gammon  The  ^logical  Seminary  v.  Eobbins,  128 
Ind.  85  ;  Delmotte  v.  Taylor,  1  Redf.  417  ;  Duffell  v.  Noble,  14  Tex.  640 ;  Jackson  v. 
Street  Rule,  88  N.  Y.  520  (reversing  15  J.  &  S.  85)  ;  Bigelow  v.  Paton,  4  Midi.  170. 


Delivery.  121 

do  to  effect  a  delivery,  an  actual  delivery  of  the  slate  was 
not  necessary.^ 

14G.  Declaeatioxs  of  Doxoe,  Insufficient  to  Show 
A  Deliveey. — Where  the  donor  remains  in  possession, 
or  it  is  not  shown  that  the  gift  was  ever  in  the  possession 
of  the  donee  or  in  the  possession  of  some  person  for  him, 
his  declarations,  however  often  repeated,  that  he  had 
made  the  gift  will  be  unavailing  to  support  the  averment 
of  a  gift.  Such  declarations  cannot  take  the  place  of  a 
delivery.^ 

147.  Donor  Believing  That  a  Further  Act  was 

Necessary  to  Complete  Gift, — If  the  conduct  of  the 
donor  is  such  as  to  show  that  he  considers  that  the  per- 
formance of  some  further  act  is  necessary  in  order  to  com- 
plete the  gift,  then  until  that  act  is  performed,  or  until 
he  makes  it  manifest  that  he  does  not  consider  its  joer- 
formance  as  necessary  in  order  to  perfect  the  gift,  the  gift 
is  not  completed.  This  is  especially  true  where  the  trans- 
action is  involved  in  some  ambiguity  or  uncertainty,  es- 
pecially with  reference  to  the  delivery.  In  all  such 
instances  it  is  clear  that  the  donor  considers  that  he  has 
dominion  over  the  property,  and  that  he  has  not  parted 
with  his  title  to  it — that  he  is  yet  under  a  promise  to 
make  the  gift.  These  statements  finds  support  in  an 
early  English  case.  In  that  case  A  died  intestate,  the 
owner  of  personal  property  and  entitled  to  bank  annuities 
in  a  trustee's  name,  the  dividends  being  payable  to  B.  C, 
one  of  A's  heirs,  addressed  a  letter  to  B,  and  after  men- 
tioning the  intestate's  projDcrty,  said  "  my  share  I  shall 

1  Ellis  r.  Lacor,  31  Mich.  185  ;  S.  C.  IS  Amer.  Rep.  178. 

^  Anderson  r.  Baker,  1  Ga.  595;  Wyche  v.  Greene,  11  Ga.  159;  Hansell  r. 
Bryan,  19  Ga.  167  ;  Fulton  v.  Fnlton,  48  Barb.  581  ;  'Hunter  v.  Hunter,  19  Barb. 
631  ;  Huntington  v.  Gilmore,  14  Barb.  243;  Kintzel  v.  Kintzel,  133  Pa.  St.  71  ; 
Backer  v.  Meyer,  43  Fed.  Eep.  702.     See  Sections  224,  225. 


122  Gifts. 

relinquish  to  you  for  your  benefit  only."  A  deed  of  release 
and  assignment  from  C  to  B,  of  all  of  C's  interest  in  A's 
effects  was  afterward  by  C's  direction  prepared  for  his 
execution,  but  never  executed,  C  having  died  the  day 
before  that  on  which  he  had  directed  his  solicitor  and  a 
witness  to  attend  him  to  attest  the  execution  of  the  re- 
lease ;  but  having  joined  with  B  and  the  other  heirs  of  A 
in  executing  a  release  to  the  trustee  of  the  bank  annuities 
on  the  trustees  transferring  them  to  B,  it  was  held  that 
as  to  the  several  personal  estates  there  was  no  valid  gift 
to  B,  but  as  to  the  bank  annuities  and  their  produce  there 
was  a  valid  gift.  "  It  is  sufficient  to  say,"  said  the  Master 
of  the  Bolls,  "  that  in  the  present  case  there  was  not  a 
comj^lete  act.  A  further  act  was  intended,  but  never 
actually  completed."  ^ 

148.  Act  of  Delivery  Slight  »  or  Ambiguous  but 
Intent  and  Belief  of  Donor  Clear. — If  the  language 
used  by  the  donor  is  clear  and  unambiguous,  showing  a 
clear  intent  to  make  the  gift  and  a  belief  on  his  part  that  he 
had  done  all  that  was  necessary  to  complete  it,  then  the 
act  of  delivery  if  slight  and  ambiguous  will  be  aided 
thereby,  not,  however,  dispensing  with  an  actual  delivery  ; 
but  renderino;  the  srift  valid  where  it  would  be  deemed  in- 
valid  if  the  acts  of  delivery  were  uncertain  or  ambiguous. 
So  if  there  is  a  clear  act  of  delivery,  accompanied  by 
words  of  a  gift  of  a  somewhat  doubtful  import,  the  act  of 
delivery  may  be  resorted  to,  to  determine  the  intent  the 
alle2;ed  donor  had  in  his  mind  when  he  made  the  deliverv 
and  used  the  lan2;uao;e  attributed  to  him.  Or,  in  other 
words,  a  good  delivery  may  aid  doubtful  words  of  gift ; 
and  unambiguous  acts  of  delivery  may  be  aided  by  clear 
words  of  gift.^ 

1  Hooper  v.  Goodwin,  Wils.  Ch.  212;  Rupert  v.  Johnston,  40  Q,  B.  (Can.)  11. 
'^Fearing  r.  Jones,  149  Mass.  12;  Anderson  i'.  Baker,  1  Ga.  595. 


Delivery.  123 

149.  Baron  Pollock's  Decision. — As  late  as  1883,  j 
an  attempt  to  modify  the  stiff  and  inflexible  rule  requir- 
ing a  delivery,  was  made  in  England.  Baron  Pollock, 
after  an  extended  discussion  of  the  rule  with  respect  to  a 
delivery,  declared  the  true  rule  of  the  law  to  be  this : 
"  The  question  to  be  determined  is  not  whether  there  has 
been  an  actual  handing  over  of  propert}^  manually,  but 
whether,  looking  at  all  the  surrounding  circumstances  of 
the  case,  and  looking  particularly  at  the  nature  and  char- 
acter of  the  chattel  which  is  proposed  to  be  given,  there 
has  or  has  not  been  a  clear  intention  expressed  on  the 
l^art  of  the  donor  to  give,  and  a  clear  intention  on  the 
part  of  the  recipient  to  receive  and  act  upon  such  gift." 
And  although  this  is  a  mere  dictum,  he  declared  that 
"  whenever  such  a  case  should  arise  again  "  he  was  "  con- 
fident that  that  would  be  the  basis  of  the  decision  of  a 
court  of  common  law,  and,  of  course,  the  same  result 
would  follow  in  a  court  of  equity."  In  this  instance 
he  was  referring  to  a  gift  inter  vivos}  The  court  held 
tliat  the  posting  of  a  piece  of  paper,  with  the  donee's 
name  and  a  date  written  on  it,  signed  by  the  donor 
in  her  own  writing,  upon  a  picture  in  the  donor's 
house,  where  the  donee,  her  sister,  frequently  visited, 
was  not  of  itself  enough  to  show  a  gift — not  because 
of  lack  of  delivery,  but  because  tliere  was  nothing 
to  show  an  intention  to  give  the  picture.  But  as  to  a 
silver  sugar-bowl,  a  dessert  service,  and  some  old  Chelsea 
dishes  and  plates,  it  was  held  that  a  declaration  of  a  gift 
in  the  presence  and  to  the  donee,  and  the  handing  over  to 
such  donee  one  dish  in  the  name  of  the  whole,  was  a 
sufficient  delivery,  although  none  of  the  articles  were  re- 
moved from  the  house  of  the  donor.     Seven  years  later, 

'  Danhy  v.  Tucker,  31  W.  E.  578,  following  a  dictum  in  "Ward  v.  Andlord,  16 
M.  &  W.802,  871. 


124  Gifts. 

the  rule  announced  by  Baron  Pollock  was  overturned  by 
the  Queen's  Bench,  in  a  lengthy  opinion  by  Justice  Fry, 
in  which  the  court  adhered  to  the  case  of  Irons  v.  Small- 
piece,^  and  declared  that  it  had  not  been  overruled  by  the 
decision  of  Baron  Pollock.  The  case  is  an  exhaustive 
review  of  all  the  modern  and  old  English  cases  and  firmly 
settles  the  rule  that  a  delivery  is  essential.  There  it  is 
held  that  the  gift  of  a  chattel  capable  of  delivery,  made 
per  verba  de  prcesenti  by  a  donor  to  a  donee,  and  assented 
to  by  the  donee,  Avliose  assent  is  communicated  to  the 
donor,  does  not  pass  the  property  in  the  chattel  without 
delivery.^ 

150.  Delivery  by  avay  of  Bailment. — If  the  de- 
livery amounts  only  to  a  bailment,  then  the  gift  is  incom- 
plete ;  for  there  is  no  unconditional  delivery.  Thus 
where  a  father  in  his  last  illness  placed  a  package  of 
money  in  the  possession  of  his  son  to  take  care  of,  and 
some  few  days  afterward  directed  him,  in  case  he  should 
not  get  well,  to  take  the  money  and,  after  paying  the  fu- 
neral and  other  designated  expenses,  to  divide  the  re- 
mainder equally  between  himself  and  his  brothers  and 
sisters,  it  was  held  that  the  delivery  was  made  by  way  of 
bailment  and  not  in  execution  or  contemplation  of  a  gift, 
and  that  there  was  no  donatio  mortis  causa? 

151.  Doxee  Unaware  of  Thing  Given,  although 
He  Know^s  that  Something  of  Value  is  Presented. — 
It  is  not  necessary  that  the  donee,  at  the  time  of  the  de- 
livery or  even  at  any  time  before  the  death  of  the  donor, 
should  know  what  was  given.  Thus  where  the  donor 
sealed  up  a  note  in  an  envelope  and  delivered  it  to  the 

12B.  &  A.  551. 

2  Cochrane  v.  Moore,  25  Q.  B.  Div.  57  ;  S.  C.  59  L.  J.  Q.  B.  377  ;  63  L.  T.  153 ; 
38  W.  R.  588 ;  54  J.  P.  804 ;  6  T.  L.  R.  296. 
=*McCordt).  McCord,  77  Mo.  166. 


Delivery.  125 

donee,  saying  to  lier  that  it  contained  a  gift  for  her,  but 
requesting  that  it  be  not  opened  until  after  liis  death,  the 
gift  was  held  valid,  although  the  donee  did  not  know 
what  the  gift  was  until  she  opened  the  envelope.^  So 
where  a  testator  made  a  will,  and  included  in  it  £100  for 
his  executors,  in  whose  hands  he  placed  the  will  ;  and 
subsequently  made  a  fresh  will,  but  kej^t  the  former,  and 
directed  it  to  the  first  executor,  saying  it  contained  some- 
thing for  him,  the  two  transactions  occurring  in  his  last 
sickness  where  the  testator  was  in  hourly  expectation  of 
death,  the  gift  was  upheld  as  a  donatio  mortis  causa? 

152.  Donee  in  Possession  at  Time  of  Gift. — If  the 
donee  has  possession  at  the  time  of  the  gift,  having  ob- 
tained such  possession  either  lawfully  or  unlawfully  at 
some  time  previous  thereto,  the  law  does  not  require  him 
to  first  deliver  the  subject-matter  of  the  gift  to  the  donor 
and  then  the  donor  redeliver  it  to  the  donee.  Such  a 
transaction  would  be  a  useless  formality.^  Thus,  where  a 
wife  told  her  husband,  on  her  death-bed,  that  he  might 
have  a  note  she  owned  and  which  was  then  in  a  bureau 
drawer  in  the  house  they  jointly  occupied,  and  the  note 
remained  in  the  drawer  until  after  her  death,  the  gift  was 
upheld  ;  because  it  was  in  his  house  and  presumjDtively 
accessible  to  him.'^  A  donee  had  possession  of  a  barge, 
and  he  used  it  as  a  servant  of  the  owner.  The  owner  gave 
it  to  him,  and  thereafter  the  donee  used  it  as  his  own,  pay- 

'  Worth  V.  Case,  42  N.  Y.  362.  See  Wadd  v.  Hazleton,  62  Hun,  602. 

=  Hill  V.  Chapman,  2  Bro.  C.  C.  612. 

^Providence  Institute,  etc.,  v.  Taft,  14  R.  I.  502;  Wing  v.  Merchant,  57  Me. 
383 ;  Frame  v.  Frame,  32  W.  Va.  463 ;  Carradine  v.  Carradine,  58  Miss.  286 ; 
Porter  v.  Gardner,  60  Hun,  571;  Tenbrook  v  Brown,  17  Ind.  410;  Alderson  v. 
Peel,  64  L.  T.  645;  S.  C.  7  T.  L.  Kep.  418;  Waring  v.  Edmonds,  11  Md.  424; 
Penfield  v.  Thayer,  2  E.  D.  Smith,  305;  Roberts  v.  Roberts,  15  W.  R.  117; 
Champney  v.  Blanchard,  39  N.  Y.  HI ;  Esswein  v.  Seigling,  2  Hill  (S.  C),  Ch. 
600. 

*Stevens  v.  Stevens,  2  Hun,  470;  Williams  v.  Fitch,  18  N.  Y.  546. 


126  Gifts. 

ing  the  wages  of  the  crew.  The  gift  was  deemed  valid.^ 
But  all  the  courts  have  not  acquiesced  in  the  rule  that  a 
delivery  is  unnecessary  when  the  article  given  is  in  the 
hands  of  the  donee,  especially  in  the  case  of  gifts  mortis 
causa.  In  Maine  it  was  said  that  such  a  delivery  was  not 
effectual  in  the  instance  of  the  latter  kind  of  gifts.  "  It 
is  the  opinion  of  the  court,"  said  Walton,  J.,  "  that  the 
gift  of  a  savings-bank  book,  causa  mortis,  to  be  valid  must 
be  accomjDanied  by  an  actual  delivery  of  the  book  from 
the  donor  to  the  donee,  or  to  some  one  for  the  donee ;  and 
that  the  delivery  must  be  made  for  the  express  purjDOse 
of  consummating  the  gift ;  and  that  a  previous  and  con- 
tinuing possession  by  the  donee  is  not  sufficient."  ^  The 
same  court  extended  the  rule  to  a  gift  inter  vivos  between 
husband  and  wife.^  So  where  A  gave  B  his  earnings  to 
deposit  in  a  savings  bank,  and  B  de^DOsited  them  from  time 
to  time,  under  an  entry,  both  in  the  deposit  book  and  in 
the  bank  ledger,  "  B,  trustee  of  A ;"  and  A  occasionally 
took  the  deposit  book  for  the  purpose  of  making  a  deposit, 
but  always  returned  it  to  B  ;  and  on  one  of  these  visits  he 
said  to  the  bank  officials,  "  This  deposit  is  payable  to  B  in 
case  of  my  death,"  to  which  the  treasurer  replied,  "  She 
has  the  control  during  your  life,  but  it  is  not  payable  to 
her  after  your  death,"  and  then  A  said,  "  Then  make  it 
so ;"  whereupon  the  bank  treasurer  added  to  the  entries 
in  the  ledger  and  deposit  book  the  words,  "  Payable,  also 
to  B  in  case  of  death  of  A ;"  and  these  entries  remained 
without  further  change  to  the  time  of  A's  death,  it  was 
held  that  the  gift  was  not  valid  either  as  a  gift  inter  vivos 
or  mortis  causa,  for  the  reason  that  there  was  no  intent  to 

1  Winter  v.  Winter,  101  E.  C.  L.  997 ;  S.  C  4  L.  T.  (N.  S.)  639 ;  9  W.  R  747. 

^  Drew  V.  Hagerty,  81  Me.  231,  243.  Where  tlie  delivery  and  the  alleged  act 
of  gift  are  simultaneous,  the  intent  to  give  must  accompany  the  delivery :  Beaver  v. 
Beaver,  117  N.  Y.  421. 

3  Lane  v.  Lane,  76  Me.  521. 


Delivery.  127 

make  an  immediate  gift,  and  that  it  was  not  good  as  a 
donatio  mortis  causa,  because  not  made  in  the  last  ilhiess 
of  the  donor/  In  Virginia,  the  rule  with  reference  to  a 
donatio  mortis  causa  is  drawn  very  close.  In  such  an  in- 
stance it  is  held  that  there  must  be  an  actual  delivery  of 
the  thing  itself,  or  of  the  means  of  getting  possession 
and  enjoyment  of  the  thing ;  or  if  the  thing  be  inactive, 
of  the  instrument  by  using  which  the  share  is  to  be  re- 
duced to  possession.  It  is  also  held  that  it  is  not  the  pos- 
session of  the  donee,  but  the  delivery  to  him  by  the 
donor,  which  is  material ;  and  that  an  after-acquired  pos- 
session of  the  donee  is  nothing,  and  a  previous  and  con- 
tinuing possession,  though  by  the  authority  of  the  donor, 
is  no  better.^ 

153.  Forgiving  Debt. — A  debt  due  from  the  donee  to 
the  donor  is  the  subject  of  a  gift.  If  this  debt  is  evi- 
denced by  a  note  or  other  instrument  of  writing,  the  de- 
livery of  the  note  or  instrument,  with  intent  to  make  a  gift 
of  the  debt,  will  be  a  sufficient  delivery.^  So  a  delivery 
of  a  receipt  instead  of  the  instrument  itself  will  be  suf- 
ficient, especially  if  there  is  some  reason  why  the  instru- 
ment cannot  then  be  delivered.     Thus  a  mother  holdina- 

o 

^  Parcher  v.  S;ico,  etc  ,  Institution,  78  Me.  470. 

*  Miller  v.  Jeffress,  4  Gratt.  472;  Yancey  v.  Field,  85  Va.  756.  The  same  rule 
is  adopted  in  New  Hampshire  :  Cutting  v.  Gilman,  41  N.  H.  147  ;  Egerton  v.  Eg- 
erton,  17  N.  J.  Eq.  419  ;  Walsli's  Appeal,  122  Pa.  St.  177;  S.  C.  1  L.  E.  Am.  535 ; 
Kenney  r.  Public,  2  Bradf.  319;  Dlckeschied  v.  Exchange  Bank,  28  W.  Va.  340. 
A  was  executor  of  an  estate,  and  as  such  in  posse-^biim  of  it.  The  heirs  wrote  to 
him  to  retain  one  thous;ind  dollars  for  the  extraordinary  trouble  he  had  liad, 
which  he  did.  It  was  held  that  this  was  a  valid  gift:  Esswein  v.  Seigling,  2  Hill 
(S.  C),  Ch.  600.  In  North  Carolina  it  was  held  that  a  gift  of  negroes  to  a  donee 
nlready  in  possession  was  void  unless  there  was  some  distinct  act  of  deliverv: 
Adams  v.  Hayes,  2  Ired.  L.  361.  Merely  showing  possession  is  no  showing  as  to 
the  time  of  delivery  :  Cole  v.  Lucas,  2  La.  Ann.  946,  unless  the  gift  is  a  note 
either  indorsed  to  the  donee  or  in  blank  :    Breier  ?'.  Weier,  S3  111.  App.  386. 

'  See  BrlnckerhofF  v.  Lawrence.  2  Saudf.  Ch.  400.  A  retention  of  the  bond  with- 
out cancellation  is  not  a  gift :  Nelson  v.  Cartmel,  6  Dana,  8  ;  Young  v.  Power,  41 
Miss.  197. 


128  Gifts. 

lier  son's  note  secured  by  mortgage  gave  liim  a  receipt  for 
one  year's  interest,  with  the  intent  and  understanding  that 
it  was  a  gift,  and  she  also  indorsed  over  a  similar  receipt  on 
the  mortgage ;  this  was  held  to  be  a  valid  gift  of  the  in- 
terest.^ So  the  mere  indorsement  of  payments  upon  the 
mortofase,  with  intent  that  the  amount  indorsed  shall 
operate  as  a  gift  to  the  extent  of  the  credit,  is  a  sufficient 
delivery.^  But  if  the  parties  consider,  and  so  act,  that  a 
delivery  of  the  instrument  evidencing  the  debt  must  be 
delivered  in  order  to  complete  the  gift,  then  a  delivery  of 
that  instrument  is  requisite,  and  no  words  or  other  acts 
will  be  sufficient  to  uj^hold  as  a  gift  what  was  nothing 
more  than  a  mere  intention.  Thus  a  father  held  his 
daughter's  note  for  money  advanced  to  purchase  an  estate. 
At  the  time  she  purchased  the  estate  he  used  some  ex- 
pressions showing  his  intention  to  give  her  the  amount  of 
the  sum  advanced  to  her,  but  he  soon  after  took  her  note 
payable  seven  days  after  date.  She  regularly  settled  the 
interest  falling  due  during  his  life.  Fifteen  years  after 
the  execution  of  the  note,  the  ftither  indorsed  on  it  as 
follows  :  "I  direct  that  this  promissory  note  be  delivered 
up  to  be  cancelled  after  my  death,  to  the  intent  that  my 
daughter  shall  be  exonerated  from  payment  of  same." 
This  memorandum  was  dated  and  signed  with  the  father's 
initials,  and  was  in  his  handwriting.  It  was  also  attested 
by  one  witness.  It  was  also  shown  that  at  A^arious  times 
the  fither  told  his  daughter  to  take  possession  of  the  note, 
particularly  so  in  his  first  illness.  This  note,  with  the 
conveyance  securing  it,  he  kept  in  his  deed  box,  and  they 
were   labeled,  "  These  belong  to  H.    C,"  his    daughter. 

'  Travis  I'.  Travis,  8  Ontario,  516  ;  afSrined  12  Ontario  App.  438.  See  where 
a  receipt  operated  as  a  donatio  mortis  causa  of  the  debt :  Moore  v.  Darton,  4  De. 
G.  &  Sm.  517. 

2  Green  v.  Langdon,  28  Mich.  221  ;  Lewis'  Est.,  139  Pa.  St.  640;  but  see  Bus-, 
well  V.  Fuller,  31  N.  E.  Eep.  294. 


Delivery.  129 

Recovering  from  his  first  illness,  he  was  fatally  stricken 
down  in  the  same  year  a  few  months  afterward ;  but  dur- 
ing this  last  illness  he  said  nothing  concerning  the  note. 
About  an  hour  before  his  death,  when  he  w^as  insensible, 
his  daughter  got  the  key  to  the  deed  box,  and  found 
therein  the  note  and  conveyance,  securing  it,  and  on  read- 
ing the  instrument  she  replaced  them  in  the  box.  It  was 
held  that  these  facts  did  not  show  a  gift,  eithQY  inter  vivos 
nor  mortis  causa,  nor  by  will,  because  there  was  not  the 
requisite  number  of  witnesses.^ 

154.  Gift  of  a  Part  of  a  Debt — Impossible  to 
Make  a  Delivery. — If  a  donor  desire  only  to  forgive 
a  part  of  the  debt  held  against  the  donee,  then  he  is  not 
required  to  deliver  up  the  instrument  evidencing  the  debt, 
and  thus  lose  his  right  of  a  superior  proof  of  his  claim. 
Thus,  where  the  donor  held  the  note  and  mortgage  of  the 
donees,  and,  desiring  to  qancel  a  j)art  of  the  debt  and 
make  them  a  present  of  it,  he,  in  the  presence  of  one  of 
them,  indorsed  the  amount  he  desired  to  cancel,  which 
was  less  than  the  whole  debt,  upon  the  note  and  mortgage 

^  Cross  V.  Cross,  1  Irish  Eq.  389  (1877).  The  court  quotes  the  following  lan- 
guage :  "  I  think  the  cases  go  farther,  to  this  extent,  that  if  the  settlement  is  in- 
tended to  be  effectuated  by  one  of  the  modes  to  which  I  have  referred,  the  court 
will  not  give  effect  to  it  by  transfer,  the  court  will  not  hold  the  intended  transfer 
to  operate  as  a  declaration  of  trust,  for  then  every  imperfect  instrument  would  be 
made  effectual  by  being  converleil  into  a  perfect  trust:"  Milroy  v.  Lord, 4  De.  G., 
F.  &  J.  264,  274.  Letters  writtten  by  a  mortgagee  to  tlie  mortgagor  declaring 
that  "  I  now  give  this  gift,  to  become  due  at  my  death,  unconnected  with  my 
will ;  and  I  hereby  request  and  direct  my  executors  to  cancel  the  mortgage 
deed,"  do  not  operate  as  a  gift :  Scales  v.  Maude,  6  DeG.,  M.  &  G.  43  ;  S.  C.  25 
L.  J.  Ch.  433  ;  1  Jur.  N.S.  1147.  Forgiving  interest  on  note:  Lewis'  Estate,  139 
Pa.  St.  640.  There  is  a  palpable  distinction  between  the  forgiving  a  part  of  a  debt 
as  a  gift,  and  the  acceptance  in  p:iyraent  in  full  of  less  than  the  amount  due.  The 
one  is  binding,  the  other  may  not  be  according  to  the  circumstances  of  the  debtor 
or  the  transaction:    McKenzie  v.  Harrison,  120  N.  Y.  260. 

When  the  donor,  supposing  he  was  about  to  die,  destroyed  a  bond  lie  held 
against  his  debtor,  as  a  gift  of  the  indelitedness  to  him,  but  recovered :  it  was 
held  that  there  was  no  gift :    Rowe  v.  Marchant,  86  Va.  177. 


130  Gifts. 

and  the  donee  present  agreed  to  the  cancellation,  it  was 
held  that  the  gift,  as  to  so  much  of  tlie  debt  as  was  can- 
celled, was  valid  as  to  both  donees,  and  that  a  receipt  in 
writing  for  the  amount  cancelled  was  unnecessary.  "As 
the  debt,"  said  the  court,  "  which  was  the  subject  of 
the  gift,  when  considered  with  reference  to  the  fact  that 
the  donee  was  the  debtor  and  that  only  part  of  the  debt 
was  attempted  to  be  given,  did  not  admit  of  actual  de- 
livery, and  as  all  was  done  that  could  well  be  done,  under 
the  circumstances,  to  render  the  gift  effectual,  we  do  not 
think  the  act  and  intention  of  the  donor  should  be  defeated 
merely  because  the  subject  did  not  admit  of  an  actual  or 
technical  delivery."  ^  So,  where  the  payee  indorsed  upon 
the  note  a  year's  interest  as  a  gift,  that  alone  was  held  to 
make  the  transaction  a  valid  gift  of  that  year's  interest.^ 
B}^  the  terms  of  a  mortgage  the  debt  secured  was  "  to  be 
paid  by  the  mortgagor  to  the  mortgagee  when  called  on  by 
said  mortgagee,  and  the  said  mortgagor  does  not  agree  to 
pay  the  sum  to  no  [any]  one  else  except  said  mortgagee." 
The  mortgagee  never  made  a  demand  for  the  money,  and 
died.  It  was  held  that  by  his  death  the  consideration  of 
the  mortgage  became  a  gift  to  the  mortgagor.^ 

155.   Gift  of  Part  of  Article. — In   1890,  by  the 
Court  of  Queen's  Bench,  it  was  decided  that  a  gift  of  an 

^  Green  v.  Langdon,  28  Mich.  221.  Tiie  court  was  ready  to  admit  that,  if  a 
gift  consists  of  tangible  personal  property,  which  admits  of  a  delivery,  there  must 
be  one;  "and  the  same  rule  would  probably  apply  where  the  note  or  bond  of  a 
third  person  is  the  subject  of  the  gift.  Whether,  if  the  whole  mortgage  debt, 
in  the  present  case,  had  been  the  subject,  delivery  of  the  note  and  mortgage, 
or  one  of  them,  would  not  have  been  essential  to  the  validity,  we  need  not  in- 
quire." See,  on  tliis  exact  point,  Cochrane  v.  Moore,  25  Q.  B.  Div.  57 ;  S.  C.  59 
L.  J.  Q.  B.  377  ;  (>3  L.  T.  153 ;  38  W.  R.  583  ;  54  .J.  P.  804 ;  6  T.  L.  R.  296.  See 
"Wetmore  v.  Brooks,  18  N.  Y.  Supp.  852:  a  retention  on  condition  that  part  be 
a[)plied  to  donor's  debts  rendered  gift  void. 

^Travis  i\  Travi>,  8  Out.  516;  affirmed  on  appeal,  12  Ont.  App.  438. 

^Sebrell  v.  Couch.  55  Ind  122.    There  was  no  other  evidence  than  the  mortgage. 


Delivery.  131 

interest  in  an  article,  as  one  undivided  fourth  part  of  a 
horse,  was  invalid  unless  there  was  a  delivery  to  the  donee. 
In  this  case  the  parties  resided  in  England  and  the  horse 
was  in  France.  The  owner  in  England  there,  face  to  face, 
gave  the  donee  one  undivided  fourth  j)art  of  the  horse. 
A  few  days  after,  he  wrote  to  the  trainer  having  the  horse 
in  charge,  and  in  whose  stables  it  was,  and  told  him  of  the 
gift ;  but  he  did  not  inform  the  donee  that  he  had  so 
written  to  the  trainer.  These  facts  were  held  not  to  con- 
stitute a  valid  gift  as  against  a  subsequent  creditor  of  the 
donor.^  The  court  at  great  length  discusses  the  question 
whether  a  delivery  is  requisite  to  render  a  gift  valid,  but 
seems  to  have  overlooked,  at  least  in  the  opinion,  that  the 
gift  was  only  a  part  of  an  article  ;  and  to  require  the  donor 
to  yield  up  the  possession  of  the  horse  to  the  donee  was  to 
require  him  to  part  with  the  possession  of  an  animal  when 
his  interest  was  three  times  as  sjreat  as  that  of  the  donee.-^ 

156.  Delivery  of  Account  Owed  by  Doxee  to 
DoxoR. — If  the  donee  be  indebted  to  the  donor,  the  lat- 
ter may  make  him  a  present  of  such  indebtedness.  Such 
a  transaction  is  nothing  more  than  a  forgiving  of  the 
debt.  If  such  indebtedness  be  evidenced  by  a  writing,  a 
delivery  up  of  such  writing  will  be  sufficient,  especially 
if  cancelled  by  the  donor ;  and  if  it  be  only  an  account, 
then  delivering  to  the  donee  a  statement  in  writing  that 
the  indebtedness  is  cancelled  will  be  sufficient  if  properly 
accepted.^  This  would  be  nothing  more  than  a  receipt. 
But  suppose  the  account  is  entered  at  length  in  the 
account-books  of  the  donor,  and  he  cancels  the  account 

1  Cochrane  v.  Moore,  25  Q.  B.  Div.  57  ;  S.  C  59  L.  J.  Q.  B.  .177  ;  63  L.  T.  153  ; 
38  W.  R.  588;  54  J.  P.  804;  6  T.  L.  R.  296;  Clock  v.  Chadeagne,  10  Hun,  97. 

^The  gift  of  an  undivided  part  may  be  affected  by  a  deed  :  Ilam  v.  Van  Orden, 
84  N.  Y.  257. 

^Champiiey  v.  Blanchard,  39  N.  Y.  Ill ;  Young  v.  Power,  41  Miss.  197. 


132  Gifts. 

with  the  intent  to  make  it  a  gift  to  the  donee,  and  all  the 
other  formal  parts  of  a  gift  are  executed,  except  some 
formal  act  of  delivery ;  would  the  cancellation  of  the  ac- 
count be  a  delivery  ?  We  think  it  would,  if  the  proof  of 
intent  to  give  was  clearly  and  uncontradictorily  made  out,^ 
In  a  Tennessee  case  it  was  shown  that  the  donor  intended 
to  give  a  note  to  his  father  which  he  held  against  him  by 
inserting  a  provision  in  his  will  to  that  effect,  but  the 
scrivener  who  drew  the  will,  told  him  that  was  not  neces- 
sary, and  that  he  might  make  the  gift  by  declaring  his 
intention  on  the  back  of  the  note,  which  he  did,  retaining 
the  note  in  his  possession.  The  note  was  never  delivered 
to  the  father,  but  the  son  directed  his  wife,  the  residuary 
legatee,  that  after  his  death  it  be  given  to  him,  and 
she  so  acted  as  to  lead  him  to  believe  that  she  had 
promised  to  do  so.  It  was  held  that  a  court  of  equity 
would  perpetually  enjoin  its  collection.^ 

157.  Akticle  Given  not  Present  at  Time  and  Place 
OF  Gift. — The  fact  that  the  article  given  is  not  at  the  place 
where  the  words  of  gift  are  uttered  does  not  dispense  with 
a  delivery.  This  is  true  of  a  gift  7inortis  causa.  Thus 
where  a  donor  attempted  to  give  a  bank-deposit  to  the 
donee,  and  her  bank-book  was  in  the  possession  of  her 
agent  in  another  State,  the  gift  was  held  invalid,  although 
she  was  then  in  full  expectation  of  almost  immediate  death.'^ 

^  Deppe  V.  People,  9  Bradw.  349;  Young  d.  Power,  41  Miss.  197. 

2  Richardson  r.  Adams,  10  Yerg.  273.  See  Sims  v.  Walker,  8  Humph.  502, 
where  the  preceding  case  is  distinguished,  and  a  promise  by  one  who  had  no  in- 
terest in  the  matter  was  held  not  to  create  a  trust,  as  was  held  in  the  first  case. 

Gift  of  dower  by  owner  cannot  be  proved  by  casual  declarations:  Kintzel  v. 
Kintzel,  133  Pa.  St.  71.     See  Section  279. 

AVhere  a  father  loaned  his  sons  a  sum  of  money  and  so  charged  it  on  his  books ; 
and  afterward  he  transferred  the  debt  to  the  credit  side  of  the  ledger,  with  intent 
to  make  a  gift  of  the  sum,  the  gift  was  held  valid  :  Albert  v.  Albert,  74  Md.  526. 

3  Case  V.  Dennison.  9  R.  I.  8S ;  Roberts  v.  Wills,  Spencer  (N.  J.),  591 ;  Dunbar 
V.  Dunbar,  80  Me.  152. 


Delivery.  133 

But  where  the  note  was  in  the  hands  of  the  donor's  agent, 
and  was  not  present,  a  direction  from  the  donor  to  this 
agent  to  give  it  to  the  donee  in  pursuance  of  his  design  to 
make  a  present  of  it  was  held  to  be  a  sufficient  delivery.^ 
Where,  however,  no  direction  was  given  by  tlie  donor  to 
her  agent  to  deliver  the  note  to  the  donee,  although  full 
words  of  formal  gift  were  used,  addressed  to  the  donee, 
the  gift  was  held  invalid."  So  where  the  donor,  a  few 
days  before  his  death  and  in  his  last  sickness,  conveyed 
to  his  sister  a  farm  on  which  she  and  her  husband  then 
and  had  resided  for  several  years,  and  at  the  same  time 
told  her  there  was  personal  property  on  the  farm,  except- 
ing some  of  it  for  himself,  that  would  be  of  no  service  to 
him,  but  might  be  to  her,  and  said :  "  I  will  give  it  to 
you,"  the  farm  and  the  property  on  it  being  fifteen  miles 
away ;  it  was  decided  that  there  was  no  gift  either  inter 
vivos  or  mortis  causa.^ 

158.  Delivery  of  Key  to  Chest  or  Drawer. — The 
delivery  of  a  key  to  a  chest  with  words  of  gift  of  the 
chest,  is  a  sufficient  delivery.*  In  the  case  just  cited  the 
donor  handed  to  the  donee  certain  keys  and  said :  "  I 
give  you  the  chest  that  is  over  at  Sergeant  Rowe's,  and 
all  that  is  in  it."  This  was  while  the  donor  was  sick 
abed ;  and  a  week  afterward  he  died.  At  his  death  the 
administrator  of  the  donor  took  possession  of  the  trunk 
and  its  contents,  the  donee  never  having  received  actual 
possession  of  it.     It  was  held  that  this  was  a  valid  gift. 

'  Southerland  v.  Sontherland,  5  Bush  591.  Delivery  was  not  actually  made  to 
the  donee  until  after  the  donor's  death  :  Contra,  Picot  v.  Sanderson,  1  Dev.  L. 
309;  Waring  i;.  Edmonds,  11  Md.  424. 

^Stevens  v.  Steven  ,  2  Hun,  470. 

•^  Huntington  r.  Gilmore,  14  Barb.  2-13.  See,  also,  a  similar  case  of  delivery 
of  a  cow  :  Brink  v.  Gould,  43  How.  Pr.  289  ;  and  a  colt  on  the  farm  :  Porter  v. 
Gardner,  60  Hun,  571. 

*  Marsh  V,  Fuller,  18  N.  H.  360. 


1^4  Gifts. 

The  delivery  of  the  key  was  held  a  sufficient  delivery 
of  the  property,  not  as  a  symbolical  delivery,  but  because 
it  was  the  means  of  obtaining  possession.^  Thus  A  lodged 
at  B's  house,  and  had  furniture  and  plate  there  in  his 
separate  room.  He  declared  that  he  gave  to  B's  wife 
everything  in  his  room,  but  there  was  no  actual  delivery, 
except  that  he  give  her  the  key  when  he  went  out  of 
town.  While  once  thus  out  of  town  he  died.  It  was 
held  that  there  Avas  a  sufficient  delivery  and  a  valid  gift.^ 
A  great  many  cases  contain  dicta  that  the  delivery  of  a 
key  to  a  chest,  trunk,  or  drawer  may  be  sufficient ;  but 
there  are  not  many  instances  in  wdiicli  such  a  delivery 
has  been  upheld,  there  nearly  always  being  some  other 
essential  part  of  a  valid  gift  left  unperformed."  Thus  a 
payee  of  sealed  notes,  ten  days  before  his  death,  said  to  a 
third  person  that  he  did  not  w^ant  the  maker  to  pay  them. 
Within  forty-eight  hours  of  his  death,  while  confined  to 
his  bed  and  expecting  to  die,  he  told  the  maker  that  the 
notes  were  his,  that  they  were  in  a  drawer  in  another  room, 
that  the  key  of  the  drawer  was  in  a  secretary  in  the  room 
where  he  lay,  and  told  him  to  get  the  notes.  After  the 
maker's  departure  the  payee  told  his  housekeeper  that  he 
had  given  the  maker  the  notes.  The  maker  was  ap- 
pointed the  executor,  by  his  will,  of  the  payee,  who  dis- 
posed of  all  his  property  except  these  notes,  and  no 
reference  was  made  to  them  in  the  will.  Four  or  five 
days  after  the  payee's  death,  the  donee  took  possession  of 
the  notes ;  but  the  gift  was  held  invalid,  for  lack  of  a  de- 
livery.^   A  donor  in  his  last  sickness  called  for  his  trunk, 

'Coleman  v.  Parker,  114  Mass.  30;  vSheegog  v.  Perkins,  4  Baxt.  273.  So 
where  donee  already  had  the  keys  :  Taylor  v.  Taylor,  56  L.  J.  Ch.  597. 

2 Smith  V.  Smith,  2  Str.  955. 

5  Dicta.  McEwen  v.  Troost,  1  Sneed,  185. 

*  Horner's  Appeal,  2  Penny.  289.  See,  also,  Somerville's  Est.,  2  Connelly,  8G ; 
S,  C.  20  N.  Y.  Supp.  76. 


Delivery.  135 

which  was  brought  to  him  and  put  on  a  table.  He 
opened  it,  and  in  the  presence  of  the  donee,  with  aid  of  a 
third  person,  counted  out  certain  amounts  of  money  and 
bonds,  and  declared  he  gave  them  to  the  donee.  The 
donor  then  put  the  money  and  bonds  back  in  the  trunk, 
and  his  assistant  took  and  put  it  in  a  closet  in  the  donor's 
room,  occupied  exclusively  by  him.  When  the  donor 
locked  the  trunk  he  gave  the  key  to  his  assistant  and  '^ 
said  that  he  wanted  him  to  keep  it  for  the  donee.  The/f*" 
assistant  retained  the  key.  It  was  held  that  this  did  not 
show  a  valid  delivery.^  A  donor  in  extremis  caused  India 
bonds,  bank  notes,  and  money  to  be  brought  to  him  from 
his  iron  chest  and  laid  on  his  bed  ;  he  then  caused  them 
to  be  sealed  up  in  three  parcels,  and  the  amounts  and 
names  of  the  donees  written  on  them.  He  then  delivered 
them  to  his  son,  and  charged  him  to  deliver  them  to  the 
donees  as  designated  ;  and  then  directed  him  to  replace 
them  in  the  chest,  which  was  done.  Afterward  the  donor 
delivered  to  one  of  the  donees  the  key  to  the  chest,  and 
charged  her  to  keep  it,  telling  her  that  the  contents  of  the 
chest  were  to  be  hers  aud  the  other  donees.  Several  times 
afterward  he  spoke  of  the  gifts  and  who  were  the  donees ; 
but  on  learning  that  his  son  had  obtained  j^ossession  of 
the  key,  he  expressed  great  displeasure  and  caused  it  to 
be  put  in  a  basket,  with  other  keys,  then  in  his  bedroom. 
Thus  things  remained  until  his  death.  It  was  held  that 
the  gift  was  invalid  because  the  donor  had  resumed  the 
possession.^  In  this  case  the  key  was  returned  to  the 
donor ;  so  where  the  donor  delivered  his  dressing  case 
key  to  A  and  told  him  to  give  B  the  contents  after  his 
death,  the  gift  was  held  invalid,  although  A  made  the 
delivery  after  the  donor's  death  as  directed.^     Where  the 

1  Hatch  V.  Atkinson,  56  Me.  324;  Delmotte  v.  Taylor,  1  Ee.lf.  417. 

«  Bann  v.  Markham,  7  Taunt.  224 ;  S.  C.  2  Marsh,  532 ;  Holt,  N.  P.  352. 

3  Powell  V.  Hellicar,  26  Beav.  261. 


136  Gifts. 

donor  told  his  daughter  that  his  notes  were  "  in  a  little 
box  OQ  the  bureau  there ;  I  want  you  to  take  them  and 
divide  them  equally  among  your  children  ;"  and  he  told 
her  to  get  the  key  to  the  box,  and  she  did  and  tried  to  see 
if  it  would  fit,  and  it  did  ;  and  she  then  delivered  the  key 
to  her  husband  who  retained  it  until  the  donor's  death,  it 
was  held  that  there  was  no  delivery.^  So  taking  the  key 
of  a  trunk  from  the  place  where  it  is  kept,  and  the  put- 
ting of  goods  into  the  trunk  and  returning  the  key  to  its 
place,  at  the  request  of  the  owner  in  his  last  sickness,  ap- 
prehending death  and  expressing  the  desire  to  make  a 
gift  of  the  trunk  and  contents  mortis  causa,  is  not  a  de- 
livery sufficient  for  that  purpose.^  A  donor  delivered  to 
B  a  locked  ash  box,  and  told  her  to  go  at  his  death  to  his 
son  for  the  key  ;  and  that  the  box  contained  money  for 
herself,  and  entirely  at  her  disposal  when  he  was  dead, 
but  that  he  should  want  it  every  three  months  whilst  he 
lived.  The  box  was  twice  delivered  to  the  donor  by  his 
desire,  and  he  delivered  it  again  to  B,  and  it  remained  in 
her  possession  at  his  death.  On  the  donor's  death  B 
broke  open  the  box,  the  son  having  refused  to  give  her  the 
key,  and  found  a  check  drawn  by  C  in  favor  of  the  donor, 
and  inclosed  in  a  cover  indorsed  with  her  name.  All 
this  time  the  son  kept  the  key.     It  was  held  that  there 

1  Gano  V.  Fisk,  43  Oliio  St.  462. 

'Coleman  v.  Parker,  114  Mass.  30.  In  Nova  Scotia  it  was  held  that  the  de- 
livery of  the  key  of  a  chest  containing  money,  with  the  expression  "  all  the 
money  in  that  chest  I  give  you,"  is  not  a  sufficient  delivery :  Estate  of  Hartm.m, 
2  Thorn.  62.  See  Travis  v.  Travis,  12  Ont.  Aj.p.  43S  ;  S.  C.  affirming  8  Ont.  516. 
A  testator  during  his  last  illness  handed  to  his  wife  the  key  of  a  bjx  containing 
papers,  together  with  a  promissory  note  for  $400,  wliich  he  intended  to  give  her, 
but  the  box  and  its  contents  remained  as  much  in  the  possession  of  the  testator  as 
before  the  alleged  gift ;  and  the  note,  with  the  papers,  came  to  the  executor's 
hands.  It  was  held  that  there  was  no  gift:  Young  v.  Derenzy,  26  Gr.  (Ch.)  509; 
Farquharson  v.  Cave,  2  Colly.  355.  Delivery  of  the  box.  but  retaining  the  key, 
will  not  be  a  sufficient  delivery :  Warriner  v.  Rogers,  42  L.  J.  Ch.  581  ;  16  L.  E. 
Eq.  340;  21  W.  E  766 ;  28  L.T.  N.  S.  863. 


Delivery.  137 

was  no  delivery,  no  relinquishment  of  dominion  over  the 
box,  and  that  the  son  was  the  agent  of  the  donor.^  A 
father  gave  his  daughter  the  furniture  in  his  rooms,  the 
keys  to  which  were  given  her  by  her  husband,  and  she 
subsequently  removed  the  furniture  to  her  residence, 
though  it  did  not  appear  that  she  took  possession  of  it 
with  her  father's  knowledge  and  assent.  It  was  held 
that  there  was  not  a  sufficient  delivery,  a  mere  taking- 
possession  without  the  donor's  knowledge  not  being  suffi- 
cient." A  donor  had  been  confined  to  her  room  for 
twenty  years,  and  the  last  six  years  to  her  bed.  The 
donee  had  lived  with  and  taken  care  of  her  for  twent}-- 
seven  years.  In  the  room  the  donor  kept  a  bureau  and 
trunks  containing  silver  coin  and  jewelry.  Six  weeks 
before  she  died  she  handed  to  the  donee  the  keys  of  the 
bureau  and  trunk,  and  said  :  "  Mary,  here  are  these  keys  ; 
I  give  them  to  you  ;  they  are  the  keys  of  my  trunk  and 
bureau  ;  take  them  and  keep  them,  and  take  good  care  of 
them ;  all  my  property,  and  everything,  I  give  to  you ; 
you  have  been  a  good  girl  to  me,  and  be  so  still.  .  .  . 
You  know  I  have  given  it  all  to  you,  take  whatever  you 
please  ;  it  is  all  yours,  but  take  good  care  of  it."  Neither 
the  trunks,  the  bureau,  nor  their  contents  were  removed 
by  the  donee  nor  even  handled.  The  gift  was  upheld, 
the  donee  having  the  means  of  assuming  the  absolute 
control  of  the  articles  given  at  her  pleasure  being  a  suffi- 
cient delivery.^  But  where  bonds  were  found  in  a  box  at 
the  donor's  house,  indorsed  "  These  bonds  belong  to  and 
are  "  the  donee's  j^roperty,  signed  by  the  donor  ;  and  the 
donee  was  the  donor's  housekeeper,  and  had  the  key  to 
the  box  before  his  death,  and  retained  it ;  it  was  held 
that  there  was  no  gift."* 

1  Reddel  v.  Dobree,  10  Sim.  244. 
^Delmottet'.  Taylor,  1  Red f.  417. 
^  Cooper  V.  Burr,  45  Barb.  9. 
*  Trimmer  v.  Darby,  25  L.  J.  Ch.  424. 


138  Gifts. 

159.  Delivery  of  Key  of  Box  in  Donor's  Bank — 
Separation  of  Amount  of  jMoney  Given  from  Bulk. 
— A  donor  went  abroad  for  his  health,  and  on  his  return 
died  within  four  days.  He  was  an  invalid  w^hen  he  went 
abroad,  and  returned  because  of  his  sickness.  Before  going 
abroad  he  delivered  the  keys  of  his  tin  box  and  private 
drawer  in  a  safe,  which  were  in  the  bank  of  which  he  was 
president,  to  the  cashier,  with  Avhom  they  remained  until 
after  his  death.  After  his  return,  fully  aj^prised  of  his  pre- 
carious condition,  he  declared  to  the  cashier  his  intention 
to  give  the  donee  $5,000,  either  in  cash  or  bank  stock,  and 
said  that  he  had  put  $2,000  in  gold  in  a  bag  and  marked 
the  donee's  name  upon  it,  and  left  it  in  the  tin  box  in  the 
bank's  vault.  He  directed  the  cashier  to  go  to  the  bank  and 
count  out  $3,000  more  in  gold  coin,  and  put  it  in  a  sack  and 
mark  it  as  the  other  sack  was  marked  ;  and  directed  that, 
in  case  of  his  death,  the  sacks  should  be  delivered  to  the 
donee.  The  cashier  counted  the  gold  coin  out  of  the  tin 
box,  placed  it  in  sacks,  and  marked  it  as  directed,  after 
which  he  informed  the  donor  that  his  instructions  had 
been  carried  out,  to  which  he  replied  approvingly.  The 
sacks  containino;  the  coin  remained  in  the  tin  box  and 
the  drawer  until  the  donor's  death,  the  cashier  still  re- 
taining the  keys.  At  the  time  of  the  donor's  death  the 
tin  box  was  found  to  contain,  in  addition  to  other  large 
sums  of  money,  a  sack  containing  $2,000,  marked 
in  the  handwriting  of  the  donor  as  follows :  "  $2,000. 
This  belongs  to  P.  G.  Dye.  11-15-1886."  Dye  was 
the  donee.  There  was  also  a  j^ackage  of  $1,000 
in  currency,  counted  out  in  the  same  way  for  an- 
other donee,  and  put  in  an  envelope,  marked,  and  de- 
posited in  the  tin  box.  These  were  held  valid  gifts,  the  court 
saying :  "  It  clearly  appears  from  the  facts  found  in  the 
present  case  that  the  sacks  containing  the  ojold  coin,  as 


Delivery.  139 

well  as  the  package  in  which  the  currency  was  sealed, 
were  delivered  to  the  cashier  of  the  bank  for  the  use  of 
the  intended  donees.  Each  parcel  of  money  contained, 
written  upon  it,  what,  in  effect,  amounted  to  the  declara- 
tion of  a  trust  in  favor  of  the  person  who  was  indicated 
to  be  the  owner  of  its  contents.  The  money  was  carefully 
counted  and  placed  in  packages,  thus  separating  it  from 
all  the  other  money  and  valuables  of  the  donor.  Upon 
each  parcel  or  package  appeared  a  written  declaration 
made  by,  or  at  tlie  request  of,  the  donor,  indicating  as 
plainly  as  language  could  the  intention  of  the  latter  in 
respect  to  the  title  and  ownership  of  the  property.  The 
character  of  the  property  was  such  that  no  prudent  person 
would  have  directed  its  removal  from  the  vault  of  the 
bank.  The  donor  had  relinquished  the  key  to  his  private 
drawer  and  tin  box  to  the  cashier  of  the  bank,  thereby 
effectually  surrendering,  so  far  as  could  be,  all  dominion 
over  the  property,  and  affording  to  the  donee  the  means 
of  obtaining  possession  of  it.  .  .  .  Our  conclusion  is  that 
the  facts  show  a  valid  delivery  to  the  cashier  for  the  use 
of  the  donee,  and  that  the  delivery  was  made  in  view  of 
impending  death."  ^ 

160.  Delivery  to  Third  Persox  for  Doxee. — But 
a  delivery  need  not  be  made  to  the  donee  in  person  ;  it 
may  be  made  to  a  third  person  for  him,  even  without  the 

1  Devol  V.  Dye,  123  Ind.  321.  See,  also,  Thomas  v.  Lewis,  15  S.  E.  Eep.  3S9. 
In  Kentucky  it  was  held  that  the  delivery  liy  the  decedent  of  the  key  of  her  desk, 
and  the  actual  delivery  to  her  mother  of  the  letter  of  A  containing  a  full  descrip- 
tion of  the  notes  and  bonds  held  by  him  as  agent  of  the  decedent,  was  a  siiificient 
dcliverv  to  make  a  gift  mortis  cauRa  complete:  Stephenson  v.  King,  81  Ky.  425. 
The  key  must  be  delivered  as  a  delivery  of  the  gift,  and  not  as  the  means  of  ac- 
qtiiring  the  possession.  Thus,  if  A  delivers  to  B  a  key  to  his  drawer  in  the  house, 
and  tells  B  to  take  out  his  watch  and  give  it  to  T,  and  B  fails  to  d<i  so  until  A  is 
dead,  the  gift  is  invalid:  Powell  v.  Hellicar,  26  Beav.  261;  S.  C.  5  Jur.  N.  S.  232; 
28  L.  J.  Ch.  355.  In  this  case  the  donee  was  unaware  of  the  gift  until  after  A's 
death.     Suppose  he  knew  of  it,  and  accepted  the  gift  before  A's  death,  quxref 


140  Gifts. 

knowledge  of  the  latter.  The  delivery  must  be  made  to 
such  third  person  for  the  use  of  the  donee,  and  if  it  is 
made  "  under  such  circumstances  as  indicate  that  the 
donee  relinquishes  all  right  to  the  possession  or  control  of 
the  thing  given,  and  intends  to  vest  a  present  title  in  the 
donee,  the  gift  will  be  sustained."  ^  Such  a  person  becomes 
a  trustee  of  the  donee,  and  the  trust  thus  created  may  be 
enforced  against  him,  even  a  donatio  mortis  causa.^     Thus 

iDevolt).  Dye,  123  Ind.  321;  Farquharson  v.  Cave,  2  Coll.  356;  15  L.  J.  Ch. 
N.  S.  137  ;  Smith  v.  Ferguson,  90  Ind.  229  ;  Wilcox  v.  Matteson,  53  Wis.  23 ; 
Gano  V.  Fisk,  43  Ohio  St.  462;  Walsh's  Appeal,  122  Pa.  St.  177  ;  Michener  v. 
Dale,  23  Pa.  St.  59 ;  Hunter  v.  Hunter,  19  Barb.  631  (to  wife  for  son). 

^  Devol  V.  Dye,  supra;  Bouts  v.  Ellis,  17  Beav.  121;  Grymes  v.  Hone,  49 
jS".  Y.  17  ;  Borneman  v.  Sidlinger,  15  Me.  429  ;  Drury  v.  Smith,  1  P.  Wius. 
404 ;  Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  264  ;  Martin  v.  Funk,  75  N.  Y.  134 ; 
Beals  V.  Crowly,  59  Cal.  665;  Hill  v.  Stevenson,  63  Md.  364;  18  Am.  Kep.  231  ; 
Minor  v.  Rogers,  40  Conn.  512;  Meriwether  v.  Morrison,  78  Ky.  572;  Contant 
V.  Schuyler,  1  Paige,  316.  If  the  donee  demand  it  of  the  donor's  executor, 
that  is  evidence  of  an  acceptance:  Hunter  v.  Hunter,  19  Barb.  631;  Dole 
V.  Lincoln,  31  Me.  422;  Gardner  v.  Merritt,  32  Md.  78,  82;  Gass  v.  Simpson, 
4  Coldw.  288;  Caldwell  v.  Renfrew,  33  Vt.  213;  Miller  v.  Le  Piere,  136 
Mass.  20 ;  Sessions  v.  Moseley,  4  Cush.  87  ;  Bostwick  v.  Mahafiy,  48  i\Iich. 
342;  Wyble  v.  McPheeters,  52  Ind.  393;  Miller  v.  Billingsly,  41  Ind.  489; 
Stone  V.  Hackett,  12  Gray,  227  ;  Fai-quharion  v.  Cave,  2  Colly.  356,  386 ; 
AValker  v.  Crews,  73  Ala.  412;  Conner  v.  Root,  11  Col.  183;  Rinker  v. 
Rinker,  20  Ind.  185;  Jones  v.  Deyer,  16  Ala.  221;  Kilby  v.  Godwin,  2  Del.  Ch. 
61  ;  Micliener  v.  Dale,  23  Pa.  St.  59  ;  Gourley  v.  Linsenbigler,  51  Pa.  St.  345  ; 
Trorliciit  v.  Weizenecker,  1  Mo.  App.  482 ;  Emery  v.  Clough,  63  N.  H.  552 ; 
Huntington  v.  Giimore,  14  Barb.  243  ;  Barnes  v.  People,  25  111.  App.  136.  A 
deed  left  at  the  registry  office  for  registration  was  held  to  be  a  delivery  :  Mason  r. 
Holman,  10  Lea.  315  ;  Davis  v.  Garrett,  18  S.  W.  Rep.  113;  Dresser  v.  Dre.>ser, 
46  Md.  48;  Newton  v.  Snyder,  44  Ark.  42;  Dickeschied  v.  Exchange  Bank, 
28  W.  Va.  340;  Barclay's  Estate,  2  W.  N.  C.  447;  S.  C.  38  Leg.  Int.  108. 
But  see  Walsh  v.  Kennedy,  2  W.  N.  C.  437.  A  wife,  in  her  last  sickness, 
requested  her  husband  to  give  to  her  daughter  her  wearing  apparel,  watch, 
and  ring,  all  then  in  her  possession,  for  her  use,  which  he  promised  to  do, 
and  after  her  death  he  made  an  inventory  of  them,  locked  the  articles  in  a 
stron£  box,  gave  the  key  to  his  wife's  friend,  and  sent  the  box  to  the  daughter. 
It  was  held  that  there  was  a  valid  gift,  the  delivery  to  the  wife's  friend 
being  a  sufficient  delivery  of  the  articles,  which  at  the  wife's  death  be- 
longed to  the  husband :  Lucas  v.  Lucas,  1  Atk.  270.  A  dying  person  told  her 
servant  to  take  the  keys  of  her  dressing-case,  and  to  deliver  her  watch  and 
trinkets  which  it  contained  to  the  plaiutifl".     The  servant  took  the  keys,  and  kept 


Delivery,  141 

A  delivered  to  B  $300  and  took  from  him  a  writing  where- 
in he  agreed  to  pay  A  the  sum  he  received  with  interest, 
"  on  demand,  if  she  call  for  it  before  she  deceased,  if 
not  to  be  paid  to  "  C  "  by  her  order."  A  retained  this 
ftaper,  and  it  was  with  her  other  papers  at  her  death. 
She  never  collected  any  part  of  the  money.  Her  inten- 
tion was  in  taking  the  paper  to  have  it  so  drawn  that  C 
would  have  whatever  she  should  not  use  of  the  $300. 
This  was  regarded  as  a  gift  to  C,  vesting  the  title  to  the 
money  in  him,  subject  to  be  defeated  only  by  A  taking 
some  further  action  in  regard  to  it;  and  she  never 
having  taken  any,  the  transaction  was  a  gift  inter 
vivos}  But  where  A,  shortly  before  her  death,  "ex- 
pressed her  anxiety,"  as  the  report  of  the  master  in 
chancery  ran,  to  a  third  person,  in  the  absence  of  B, 
"  that  B  should  have  her  furniture,"  and  said  "  that  she 
gave  all  the  furniture  to  B  and  desired  "  such  person  "  to 
take  care  of  it  for  B,"  but  there  was  no  delivery,  actual  or 
symbolical,  of  any  j^art  of  the  furniture,  a  finding  of  the 
master  that  there  was  no  gift  was  affirmed.^ 

161.  Delivery  to  Agent  of  Donor — But  to  render 
a  delivery  to  a  third  person  valid,  such  person  must  not 
receive  it  as  the  agent  of  the  donor  ;  he  must  receive  it 
as  the  agent  of  the  donee.  If  he  receive  it  with  the  se- 
cret intent  of  keeping  and  claiming  it  as  his  own,  he 
nevertheless  is  the  agent  of  the  donee,  and  may  be  held 
to  an  account.     But  a  delivery  by  the  donor  to  his  own 

them  until  after  the  death  of  her  mistress.  It  was  held  that  the  gift  was  void  : 
Powell  V.  Hellicar,  26  Beav.  261 ;  S.  C.  5  Jur.  N.  S.  232 ;  28  L.  J.  Ch.  355.  A 
father  indorsed  a  note  to  liis  child,  delivered  it  to  the  child's  motlier  for  it,  and 
then  collected  the  principal  and  interest.  This  was  held  to  be  a  gift :  Second  Nat. 
Bank  v.  Merrill,  etc..  Works,  50  N.  W.  Eep.  503. 

1  Blanchard  v.  Sheldon,  43  Vt.  512. 

^  Blake  v.  Pegram,  109  Mass.  541.  If  the  person  to  whom  it  is  delivered  is  not 
to  deliver  the  gift  to  the  donee  until  after  the  donor's  death,  the  gift  is  void  :  Au- 
gusta Sav.  Bank  v.  Fogg,  82  Me.  538. 


142  Gifts. 

agent,  or  to  a  person  wlio  receives  it  as  tlie  agent  of  the 
donor,  is  nothing  more  than  a  retention  of  the  gift  by  the 
latter,  and  is  no  delivery  whatever.  So  the  delivery  of 
property  to  a  third  person,  accompanied  by  instructions 
to  deliver  it  to  the  donee  at  the  donor's  death,  the  latter 
meanwhile  retaining  control  over  the  property,  is  in- 
effectual ;  because  such  third  person  is  merely  the  bailee 
or  agent  of  the  donor.^ 

162.  DoxoR  Revokixg  Mai^date  to  Deliver  to 
DoiSTEE. — Of  course  if  the  agent  charged  with  the  duty  of 
making  the  delivery  to  the  donee  is  the  agent  of  the 
donor,  the  gift  may  be  countermanded  at  any  point  of 
time  before  a  delivery  is  made  to  the  donee,  or  at  any 
time  before  the  agent  ceases  to  be  the  agent  of  the 
donor  and  becomes  the  agent  of  the  donee.  In  many 
cases  it  is  difficult  to  determine  when  the  power  to 
revoke  the  agent's  authority  and  to  countermand  the 
order  have  ceased.  In  Canada  arose  a  very  close  case, 
which  illustrates  the  question  under  discussion.  A 
mother  being  ill,  gave  the  key  of  a  drawer  in  a  bureau 
where  a  mortgage  made  by  her  son  to  her  was  kept,  to 
another  son,  telling  the  latter  that  she  desired  that  he 
give  the  mortgage  to  her  son,  the  mortgagor,  if  she  should 
not  see  him  again.  The  donee  was  afterward  sent  for, 
came  to  the  house,  and  saw  his  mother  alone.  She  said 
to  him  that  "  your  mortgage  is  there  in  that  drawer, 
when  you  go  home  you  can  take  it  with  you."  He  went 
away  without  taking  it.     After  her  death  the  son  having 

1  Devol  V.  Dye,  123  Ind.  321;  Tomlinson  i'.  Ellison,  104  Mo  105;  Duncan  v. 
Duncan,  5  Litt.  12;  Perk  v.  Rees,  27  Pac.  Rep.  581  ;  Stephenson  r.  King,  81 
Ky.  425.  '-A  mere  delivery  to  an  agent  in  the  cliai-icter  of  an  agent  for  the 
giver,  would  amount  to  nothing;  it  must  be  a  delivery  to  the  legatee,  or  some 
one  for  the  legatee:"  Farqnharson  v.  Cave,  2  Colly.  356,  367  ;  Newton  v.  Snyder, 
44  Ark.  42.  See  the  extreme  case  of  Diefendorf  v.  Diefendorf,  132  N.  Y,  100, 
where  the  gift  was  held  valid. 


Delivery.  143 

the  key  gave  the  mortgage  to  him.  It  was  held  that  the 
mandate  to  the  son  having  the  key  was  revoked  when  the 
mother  saw  the  donee,  and  as  there  was  no  delivery  after 
that  by  her,  there  was  no  git\.^  If  the  gift  is  delivered 
to  a  third  person  for  the  donee,  with  authority  to 
deliver  it  to  the  latter,  then  until  the  authority  is 
executed,  and  the  article  delivered  to  the  donee  and 
accepted  by  him,  such  depositary  is  the  agent  of  the 
donor,  and  the  latter  may  revoke  the  gift  and  reclaim  the 
23roperty.^  Thus  where  the  owner  of  choses  in  action  de- 
230sited  them  with  A,  to  be  equally  divided  between  his 
wife  and  children ;  and  the  depositor  later  authorized  A, 
in  case  of  his  death,  to  dispose  of  enough  choses  to  secure 
himself  against  loss  as  depositor's  indorser,  the  gift  to  the 
wife  and  children  was  held  invalid.^  And  it  may  be 
stated  generally  that  if  the  donee  is  an  adult  person,  the 
donor  may  reclaim  the  property  given,  and  placed  in  the 
hands  of  a  third  person  for  the  donee,  at  any  time  before 
the  donee  has  accepted  the  gift ;  for  acceptance  is  essential 
to  the  validity  of  all  gifts.  Thus  an  order  by  the  donor 
to  his  agent  to  collect  certain  rents  and  pay  them  to  A  as 
a  gift  may  be  revoked  at  any  time  before  A  is  informed 
of  the  gift.* 

163.  Delivery  by  Executor  or  Administrator. — 
If  the  gift  has  not  been  perfected  by  the  donor  in  his  life- 
time, so  as  to  effectually  debar  his  right  and  power  to  re- 

1  Travis  v.  Travis,  8  Ontario,  516  ;  affirmed  12  Ont.  App.  438.  See  Sterling  v. 
Wilkinson,  83  Va.  791. 

2  Dickeschied  v.  Exchnnge  Bank,  28  W.  Va.  340.  This  statement  is  fully  sup- 
ported by  the  case  cited,  but  is  diametrically  opposed  to  Standing  v.  Bowring,  31 
L.  R.  Ch.  Div.  282.     And  see  also  Wells  v.  Collins,  74  Wis.  341. 

^Sterling  v.  Wilkinson,  83  Va.  791. 

*  Wells  V.  Collins,  74  Wis.  341  But  as  the  law  presumes  an  acceptance,  if  the 
gift  is  beneficial,  where  the  donee  i^  a  minor,  as  soon  as  the  delivery  is  made  to  a 
third  person  for  the  donee,  the  gift  is  complete  and  irrevocable.  See,  also, 
Standing  v.  Bowring,  supra. 


144  Gifts. 

claim  it,  then  neither  his  executor  nor  administrator,  unless 
so  directed  by  his  will,  can  deliver  the  gift  to  the  donee 
and  bind  the  heirs  of  or  creditors  of  the  donor/ 

164.  Donor  Repossessustg  Himself  of  the  Gift 
After  Delivery  to  Agent. — If  the  depositary  is  the 
agent  of  the  donor,  the  latter  may  recall  the  gift  at  any 
time ;  and  if  the  agent,  after  his  power  is  revoked,  deliver 
the  gift,  the  transaction  will  be  a  nullity,  and  the  donor 
may  reclaim  the  gift  from  the  donee,  and  so  may  the  do- 
nor's executor  or  administrator.^ 

165.  Revocation  of  Agent's  Authority  After 
Delivery  Made. — If  the  depositary  is  nothing  more 
than  the  agent  of  the  donor,  yet  if  he  delivers  the  gift  to 
the  donee  before  his  authority  is  recalled  by  the  donor, 
the  gift  will  be  valid,  and  thereafter  it  cannot  be  re- 
voked.^ 

166.  Delivery  to  Third  Person  for  Future  Deliv- 
ery TO  Donee. — In  discussing  the  sufficiency  of  a  delivery 
of  a  donatio  mortis  causa,  it  was  said  in  an  early  IMaine 
case  that  "  there  must  be  an  actual  delivery  to  perfect  the 
gift,  but  it  may  be  made  to  a  third  person,  for  the  use  of 
the  donee,  if  such  thii'd  person  retain  possession  up  to  the 
time  of  the  death  of  the  donor."  *  It  is  quite  evident  that 
the  court  had  no  reference  to  a  delivery  by  the  donor  to 
such  third  person  to  be  delivered  to  the  donee  if  the  donor 
should  die.  This  point  was  not  involved.  In  a  New  York 
ease  language  somewhat  similar  is  used.^     This  language 

^  Picot  V.  Sanderson,  1  Dev.  L.  309. 

Ticot  V.  Sanderson,  1  Dev.  L.  309  ;  Barnes  v.  People,  25  111.  App.  136;  Dicke- 
schied  v.  Exchange  Bank,  28  W.  Va.  340. 

^  Picot  V.  Sanderson,  1  Dev.  L.  309. 

*  Borneinan  v.  Sedlinger,  15  Me.  429,  citing  Drury  v.  Smitli,  1  P.  "VVms.  404. 

""And  there  must  be  a  continuing  possession:"  Huntington  v.  Gilmore,  14 
Barb.  243. 


Delivery.  145 

applies,  however,  to  instances  where  the  donor  did  not 
intend  that  a  delivery  be  made  until  after  his  death ;  but 
where  the  delivery  in  a  donatio  inter  vivos  is  to  a  third 
person,  for  the  donee,  in  the  character  of  an  agent  for  the 
giver,  to  make  tlie  delivery  only  after  the  giver's  death, 
the  gift  is  invalid/  So,  if  the  delivery  is  to  an  agent,  with 
directions  to  deliver  the  gift  to  the  donee  after  the  death 
of  the  donor,  and  if  he  should  recover  then  to  return  the 
property,  the  delivery  is  insufficient.^ 

167.  Delivery  to  Third  Persox,  but  No  Actual 
Delivery  to  Doxee  Until  After  Doxor's  Death. — 
In  discussing  what  is  the  effect  of  a  depositary's  failure  to 
deliver  the  gift  to  the  donee  until  after  the  donor's  death, 
the  Supreme  Court  of  Massachusetts  said  :  "  If  it  be  de- 
livered to  a  third  person,  with  authority  to  deliver  it  to 
the  donee,  this  depositary,  until  the  authority  is  executed 
by  an  actual  delivery  to  and  acceptance  by  the  donee,  is  the 
agent  of  the  donor,  who  may  revoke  the  authority  and 
take  back  the  gift ;  and,  therefore,  if  the  delivery  do  not 
take  place  in  the  donee's  lifetime,  the  authority  is  revoked 
by  his  death ;  the  jDroperty  does  not  pass,  but  remains  in 
the  donor,  and  goes  to  his  executor  or  administrator.  But 
if  intended  as  a  gift  causa  mortis,  it  would  not  become  ab- 
solute and  irrevocable  till  the  death  of  the  donor ;  and, 
therefore,  if  delivered  to  and  accepted  by  the  donee,  after 
tiie  decease  of  the  donor,  it  is  sufficient."  ^     This  language 

1  Newton  v.  Snyder,  44  Ark.  42. 

"^  Walter  v.  Ford,  74  Mo.  195.  In  Vogel  v.  Gast,  20  Mo.  App.  104,  it  is  a  query 
whether  a  direction  from  the  donor  to  the  bailee  to  deliver  the  property  to  the 
donee  perfects  the  gift  if  the  order  be  not  executed  by  the  bailee :  supporting 
the  general  rule,  Dickeschied  v.  Exchange  Bank,  28  W.  Va.  340.  Thus,  a  donor 
wrote  on  two  bonds,  given  him  by  his  son,  that  they  were  a  free  gift  to  the  latter, 
and  gave  them  to  his  daughter,  but  without  any  direction  as  to  their  disposal, 
and  they  so  remained  until  after  his  death.  It  was  held  that  this  was  not  a  good 
gift:  Robson  v.  Jones,  3  Del.  Ch.  51. 

^  Sessions  v.  Mosely,  4  Cush.  87. 
10 


146  Gifts. 

receives  an  illustration  from  an  Illinois  case.  There  a  do- 
nor was  sick  and  expected  to  die  in  a  few  days.  She  called 
the  donee's  daughter  to  her  side  and  said,  naming  her, 
"  Take  this  j^ackage  and  take  care  of  it,  and  if  I  die  before 
your  father  comes  back  give  it  to  him."  The  donee  re- 
turned before  the  death  of  the  donor.  Before  his  return 
the  donor  told  his  daughter  that  she  could  put  the  gift  in 
a  small  paper  box  in  the  trunk  from  which  it  was  taken, 
and  it  was  there  put ;  but  the  next  day  the  daughter,  by 
direction  of  her  mother,  and  without  the  knowledge  of  the 
donor,  took  the  gift  out  of  the  donor's  trunk  and  put  it  in 
her  mother's  trunk,  where  it  remained  until  the  donor's 
death.  It  was  held  that  when  the  father  returned,  before 
the  donor's  death,  the  daughter  had  no  authority  to  deliver 
the  package  to  him  ;  and  that  the  language  used  also 
showed  that  the  donor  intended  to  retain  the  control  and 
possession  of  the  gift  if  the  donee  returned  during  her  life- 
time so  that  she  herself  might  make  the  gift  to  him.^  But 
the  doctrine  of  these  cases  has  not  met  with  universal  ap- 
proval or  adherence.  Thus  in  Michigan,  where  a  father 
put  property  in  the  hands  of  a  third  person  to  be  delivered 
to  his  daughter  upon  his  death,  it  was  held  to  be  a  suffi- 
cient delivery  to  create  a  trust  in  favor  of  the  daughter.^ 
So  where  a  father  delivered  bonds  to  a  trustee  for  his 
children,  to  be  delivered  after  his  death,  the  gift  was  held 
good,  although  the  trustee  had  delivered  the  bonds  to  the 
donor's  administrator,  because  he  considered  the  gift  void.^ 


^  Barnes  v.  People,  2o  111.  App.  lo6.  In  Sessions  v.  Mosely,  mpra,  it  is  admitted 
that  a  delivery  to  u  third  person  of  a  donatio  mortis  causa  is  valid,  altliough  the 
depositary  do  not  deliver  it  to  the  donee  until  after  the  donor's  death. 

-  Bostwick  V.  Maiiaffv,  48  Mich.  342.  Where  the  depositary  retained  the  money 
until  the  donor's  death,  without  the  knowledge,  and  against  his  intent,  of  the 
donor,  the  gift  was  deemed  good,  and  the  donee  allowed  to  recover  the  amount 
from  such  depositary  :  Miller  v.  BiUingsly,  41  Ind.  489. 

3  Wyble  V.  McPheters,  52  Ind.  393. 


Delivery.  147 

So  where  the  donor  gave  to  a  trustee  certain  shares  of  rail- 
road stock,  reserving  to  himself  the  income  from  them 
during  his  life,  and  then  they  were  to  be  delivered  to  the 
donees,  the  gift  was  upheld  as  a  valid  trust/  A  few  other 
cases  will  illustrate  the  point  we  are  discussing.  A  gave 
B  a  note  23a.yable  to  herself  and  signed  by  C,  directing 
him  to  take  it  and  do  the  best  he  could  with  it,  and  fur- 
nish her  with  what  means  she  needed  to  live  on,  and, 
after  her  death,  pay  her  debts  and  erect  a  certain  kind 
and  sized  monument  over  her  grave,  and  what  remained 
give  to  D.  This  gift  was  construed  as  invalid  for  lack  of 
delivery,^  It  is  clear  that  this  case  is  rightly  decided;  for 
the  donor,  by  her  agent,  retained  the  absolute  use  and  do- 
minion over  the  thing  given.  This  was  an  instance  where 
the  property  was  to  become  the  donee's  only  in  the  event 
of  the  death  of  the  donor  before  it  was  consumed,  or  be- 
fore more  than  enough  was  left  to  pay  her  debts  and  buy 
her  a  monument.  It  is  quite  clear  that  a  gift  inter  vivos 
to  take  effect  only  in  the  event  of  the  donor's  death  is 
void.^ 

168.  Presumption  Arising  from  Proof  of  Delivery 
TO  A  Third  Person. — If  the  property  is  delivered  to  a  third 
person,  accompanied  by  the  use  of  language  or  acts  which 
clearly  show  that  the  owner  intended  it  as  a  gift  for  the 
donee,  the  presumption  is  raised,  in  the  absence  of  coun- 

1  Stone  V.  Hackett,  12  Gray,  227.  See  Kekewick  v.  Manning,  1  DeG.,  i\I.  c<t  (}. 
176  ;  Gardner  v.  Merritt,  32  Md.  78  ;  Minor  v.  Rogers,  40  Conn.  512;  Meriwether 
V.  Morrison,  78  Ky.  572. 

^  Smith  V.  Ferguson,  90  Ind.  229.  There  was  nothing  to  sliow  that  the  gift  was 
made  in  the  donor's  last  sickness,  and  so,  for  that  reason,  it  failed  as  a  gift  viorlis 


cawa. 


'  Allen  I'.  Polereczky,  31  Me.  338  ;  Dole  v.  Lincoln,  31  Me  422.  In  Soiitherland 
V.  Southerland,  5  Bush.  591,  the  donor  told  his  depositary  to  deliver  the  note  given 
to  the  donee,  but  there  was  no  delivery  until  after  tiie  donor's  death.  The  gift 
was  held  good  :  Waring  v.  Edmonds,  11  Md.  424. 


148  Gifts. 

teracting  circumstances,  from  a  proof  of  these  facts,  that 
the  person  thus  receiving  it  took  it  as  the  trustee  of  the 
donee,  and  not  merely  as  the  agent  of  the  donor.^ 

169.  Between  Members  of  the  Same  Family — 
Husband  and  Wife. — The  relation  of  husband  to  wife 
is  so  close  and  their  every-day  life  is  so  blended  that  it 
is  often  difficult  to  tell  when  the  husband  has  j)erfected  a 
gift  to  his  wife  by  delivery  ;  and  this  is  not  only  true  of  a 
parent  and  child,  but  also  of  any  one  who  is  a  member  of 
his  family.  The  law  takes  cognizance  of  these  relation- 
ships, of  the  daily  contract  of  such  a  donor  and  donee,  of 
the  blending,  as  it  were,  of  their  daily  walks  and  acts, 
and  will  construe  an  act  to  amount  to  a  delivery  where  it 
often  would  not  if  the  donor  and  donee  were  not  mem- 
bers of  the  same  family.  The  law  does  not  dispense  with 
an  actual  or  constructive  delivery,  but  it  accepts  the  acts 
of  the  donor,  if  a  clear  intent  to  give  is  shown,  as  amount- 
ing to  a  delivery,  when  it  would  not  do  so  if  the  donor 
and  donee  occupied  separate  habitations  and  were  not 
members  of  the  same  family.  "  The  question  of  change 
of  possession  must  be  considered  in  connection  with  the 
other  facts  in  the  case,"  said  Chief  Justice  Cooley.  "  It 
is  no  doubt  true  that  in  respect  to  the  property  in  general 
there  was  no  open  and  visible  change  of  possession.  But 
how  could  there  have  been  ?  The  donor  and  donee  were 
living  together  as  husband  and  "wife,  at  a  public  hotel. 
Must  she  separate  from  him  in  order  to  be  competent  to 
receive  from  him  a  gift  ?  If  he  gives  her  a  picture  or  an 
article  of  furniture,  must  she  procure  it  to  be  kept  by 
some  one  else  instead  of  placing  it  in  her  own  apart- 
ment?"    In  the  case  from  which  this  quotation  is  made, 

'  Devol  V.  Dye,  123  Ind  321  ;  Shackleford  ?■.  Brown,  89  Mo.  546;  Michener  v. 
Dale,  23  Pa  St.  59  ;  Sessions  v.  Mosely,  4  Cush.  87. 


Delivery.  149 

the  husband  and  wife  were  living  at  a  public  hotel  to- 
gether. The  husband  purchased  a  horse,  a  buggy,  a 
sleigh,  and  a  quantity  of  household  furniture.  He,  some- 
time after  the  alleged  gift  to  the  wife,  mortgaged  all  this 
jH'Oijerty  without  the  knowledge  of  his  wife.  In  her  tes- 
timony with  respect  to  a  part  of  the  property  which  the 
mortgagee  seized,  she  said :  "  He  gave  me  the  horse  in 
the  fall  of  1871.  My  husband  also  gave  me  some  robes, 
harness,  and  a  cutter.  Wolf  robe  and  lap-robe  was  given 
to  me  in  the  summer  of  1872.  The  robe  w^as  given  to 
me  in  the  winter  of  1873.  He  said,  '  I  bought  these 
things  for  you.'  When  he  brought  up  the  buggy  he 
brought  it  to  the  door  and  asked  me  to  go  for  a  drive. 
He  said  he  had  bouficht  that  buo'SfV  for  me,  and  '  now  sive 
it  to  you,  with  the  horse,  for  your  own  use,  to  do  as 
you  please  with  it.'  After  he  gave  it  to  me  I  used  the 
horse  and  everything  about  it."  The  wife  also  testified 
that  after  the  horse  was  thus  given  her  she  went  to  the 
stable  where  it  was  kept  and  gave  directions  respecting  its 
keeping,  and  afterward  controlled  it.  The  court  con- 
sidered that  there  was  sufficient  evidence  for  the  jury  to 
draw  the  conclusion  that  there  was  a  delivery,  and  seem 
to  regard  the  acts  proved  sufficient  proof  of  that  requisite 
to  the  validity  of  the  gift.^  So,  wdien  a  man  and  woman 
were  married,  he  went  to  his  father's  farm  and  got  a  cow 
and  calf  he  owned.  He  drove  them  up  to  his  own  house, 
and„  calling  her  out,  said :  "  Here,  Marilla,  I  give  you 
this  cow  and  calf  for  your  own  ;  take  care  of  them."  He 
then  turned  them  over  to  his  wife,  and  she  milked  tlie 
cow,  and  fed  and  cared  for  both  of  them,  until  just  before 
her  sickness,  when  her  mother-in-law  came  and  told  her 
she  ought  not  to  be  milking  the  cow  and  feeding  them. 

'Davis  I'.  Zimmerman,  40  Midi.  24;  Armitage  v.  Mace,  96  N.  Y.  538  (gift  of 
horse) ;  S.  C.  16  J.  &  S.  107. 


150  Gifts. 

She  said  she  would  take  them  home,  milk  the  cow,  and 
let  her  have  the  milk,  and  care  for  them  until  the  daugh- 
ter-in-law got  well  enougii  to  look  after  them.  It  was 
held  that  this  showed  a  valid  delivery.  "  He  drove  her 
up,"  said  the  court,  "and  presented  her  by  words,  and 
turned  her  over  to  the  plaintiff  [the  wife],  who  afterward 
fed  and  milked  her.  This  was  as  much  an  act  of  delivery 
as  the  situation  of  the  parties  and  the  j)roperty  would 
admit  of.  The  fact  that  the  property  in  controversy 
remained  on  the  place  where  the  husband  and  wife  lived 
ought  not  to  destroy  the  gift.  The  matter  of  change  of 
possession  is  often  necessarily  a  relative  question.  Kegard 
must  be  had  to  the  relation  of  the  donor  and  the  donee, 
and  the  situation  of  the  property.  It  would  be  unreason- 
able, as  it  might  be  utterly  impracticable,  for  the  wife, 
receiving  such  gifts  from  the  husband,  to  take  it  away 
and  keep  it  at  another  place  than  the  common  home.^ 
A  husband  was  about  to  go  on  a  journey  to  a  foreign 

^Schooler  v.  Schooler,  18  Mo.  App.  69.  In  England  the  rule  is  that  there  mutt 
be  some  decided  act  evidencing  a  delivery.  Thus,  a  husband,  by  three  letters 
written  and  signed  by  himself,  directed  to  his  wife,  gave  her  all  the,  furniture, 
linen,  and  plate  lie  owned.  The  furniture  and  other  articles  were  at  his  death 
in  the  house  which  had  been  occupied  by  him  and  his  wife,  and  the  whole  had 
been  used  by  them  in  the  ordinary  way.  It  was  held  that  there  was  no  gift,  for 
want  of  a  sufficient  delivery,  and  that  the  husband  iiad  not  made  himself  a  liustee 
for  her.  "  I  am  very  sorry  for  it,"  said  the  Vice-Chancellor,  "  because  it  is  a 
monstrous  state  of  the  luw  which  prevents  effect  being  given  to  such  a  gift." 
And  so  do  we  think,  and  that  the  decision  was  erroneous.  Must  she  have  packed 
up  the  furniture  and  taken  it  away  in  order  to  have  rendered  the  gift  perfect? 
Certainly  not:  Breton  v.  WooUven,  L.  K.  17  Ch.  Div.  416;  S.  C.  50  L.  J.  Ch. 
Div.  369 ;  44  L.  T.  K.  S.  337 ;  29  W.  E.  777.  See  Tyrrell  v.  York,  57  Hun, 
292.  A  husband  may  give  his  wife  a  policy  of  insurance,  and  the  delivery 
may  be  proved  by  the  declaration  of  the  donor  the  same  as  the  gift  itself  n'ay 
be:  Estate  of  Malone,  .36  Leg.  Int.  63;  Appeal  of  Madeira,  17  W.  N.  C.  202. 
Gift  of  sleigh  and  billiard  table  by  husband  to  wife  held  invalid:  McAfee  r. 
Busby,  69  la.  328.  Gift  of  piano  held  invalid:  Kirkpatrick  v.  Finney,  30  La. 
Ann.  223;  Schaffer  v.  Dumble,  5  Ontario,  716;  Kane  v.  Desmond.  63  Cal.  464 
(held  valM)  ;  Kellogg  v.  Adams,  51  AVis.  138  (invalid);  Wambold  v.  Vick,  50 
Wis  456  (valid). 


Delivery.  151 

country,  and,  calling  his  wife's  attention  to  some  govern- 
ment bonds  lie  owned,  said :  "  I  give  these  bonds  to  you, 
and  I  show  you  how  to  cut  the  coupons  so  you  may  know 
how  to  do  it  yourself,  and  use  the  money  for  your  living." 
He  did  not  deliver  them  to  her,  but  took  them  to  a  bank, 
in  the  vault  of  which  he  had  a  drawer  in  which  he  kept 
his  private  papers.  He  placed  them  in  the  drawer,  which 
he  locked  and  the  key  to  which  he  retained.  During  his 
absence  abroad,  his  father  had  access  to  the  drawer, 
and,  as  the  interest  on  the  bonds  matured,  he  detached 
the  coupons  and  delivered  them  to  the  bank  for  collec- 
tion, and  as  the  money  was  collected  it  was  paid  to  tJie 
wife.  When  the  husband  returned,  he  assumed  control 
of  the  drawer,  collected  the  interest  in  the  same  way  his 
father  had,  and  when  the  bank  received  the  money  it  was 
passed  to  his  credit.  For  two  years  the  business  was  con- 
ducted in  this  way,  after  which  the  bank,  by  the  hus- 
band's direction,  opened  an  account  in  the  name  of  the 
wife,  in  which  it  credited  the  interest  as  it  was  collected. 
He,  however,  continued  to  draw  out  money  as  he  needed 
it,  on  checks  drawn  on  the  bank  by  himself  in  her  name. 
She  never  had  the  bonds  in  her  jDOSsession,  and  never 
saw  them  after  they  were  first  locked  in  the  drawer.  It 
was  held  that  there  was  no  delivery.^  A  wife's  legacy 
was  paid  by  the  executor  by  means  of  a  check  for  £995, 
drawn  to  the  order  of  herself  and  husband.  They  both 
indorsed  the  check,  and  together  went  to  the  husband's 
bankers,  when  she  gave  the  check  to  the  manager,  and  in 

1  Peters  v.  Fort  Madison,  etc.,  Co.,  72  la.  405.  SeeDowv.  Gould,  etc.,  Co.,  31  Cal. 
629.  In  1869  the  Supreme  Court  of  New  York  decided  that  a  wife  could  not  take  a 
gift  from  her  husband:  Little  v.  Willetts,  .^7  How  Pr.  481.  In  Maine  it  is  held 
that  if  tlie  wife  have  possession  at  the  time  of  the  gift,  no  title  will  pnss,  and 
that  there  must  be  an  actual  and  formal  delivery  :  Lane  v.  Lane,  70  Me.  521. 
Where  the  words  used  in  making  the  allej^ed  gift  are  ambiL-uous,  tlie  act  of  de- 
livery must  be  more  specific  :   Fearing  v.  Jones,  149  Mass.  12. 


152  Gifts. 

the  presence  and  with  her  husband's  assent,  told  the 
manager  to  open  an  account  in  her  sole  name,  and  place 
to  the  credit  of  it  £800,  and  to  credit  the  residue  to  her 
husband's  current  account,  which  was  done.  Afterward 
she  drew  checks  on  the  account  in  her  sole  name,  and  he 
never  interfered  wdth  the  account.  She  gave  checks  to 
her  husband  in  his  favor,  to  be  employed  by  him  in  his 
business.  By  her  directions  part  of  the  money  was  in- 
vested in  bonds,  she  holding  a  memorandum  which  stated 
that  the  bonds  were  held  for  her  by  the  bank.  Once  the 
husband  requested  her  to  sign  a  memorandum  charging 
her  account  and  securities  with  the  payment  of  the  over- 
drawn balance  of  his  account  with  the  bankers,  but  she 
refused  to  do  so.  It  was  held  that  there  was  a  gift  of  the 
£800  by  the  husband  to  the  wife.^ 

170.  HusBAXD  Purchasing  Gift  for  Wife. — If  a 
husband  purchase  a  gift  for  his  wife,  even  though  the 
gift  consist  of  household  furniture  which  is  used  in  his 
own  house,  she  living  with  him  as  husband  and  wife  usually 
live  together,  there  is  a  sufficient  delivery ;  and  that  too 
even  though  the  vendor  sujDposed  he  was  selling  the  sub- 
ject of  the  gift  to  the  husband.^  If  the  vendor  knew 
that  the  property  was  for  a  gift  to  the  wife,  the  case  is 

1  Parker  v.  Lechmere,  12  Ch.  Div.  256  ;  S.  C.  28  W.  R.  48. 

In  proving  a  gift  of  personal  ornaments,  very  slight  evidence  of  a  delivery  is 
necessary:  Tyrrell  v.  Ycrk,  57  Hun,  292.  In  gifts  by  the  head  of  a  family  and 
to  a  member  of  it,  the  presumption  is  that  possession  conlimied  in  the  donor  as 
the  head  of  the  family:  Kellogg  y.  Adams,  51  Wis.  138.  In  the  case  of  a  sale 
between  members  of  the  same  family,  the  presumption  in  Louisiana,  is  that  pos- 
session was  given  to  the  vendee  :  Dupuy  v.  Duport,  11  La.  Ann.  226.  A  husband 
handed  his  wife  a  certain  sum  of  money  as  a  gift,  and  she  immediately  replaced 
it  in  his  desk.  This  was  held  to  be  a  good  gift :  Corle  v.  Monkhouse,  25  Atl. 
Rep.  157.  A  mother  told  lier  husband  to  give  her  son  $500  out  of  a  certain  sum 
of  money  due  her  in  his  possession  ;  the  son  said  he  did  not  need  it  tiien,  and 
took  the  father's  note.  This  was  held  to  be  a  valid  gift  against  her  estate:  Rey- 
nolds V.  Reynolds,  18  R.  W.  Rep.  517. 

^Schooler  v.  Schooler,  J 8  Mo.  App.  69. 


Delivery.  153 

stronger  still  than  if  he  did  not  know  it.  Thus  a  husband 
purchased  a  horse,  and  gave  the  vendor  his  note  in  pay- 
ment. Before  he  executed  the  note,  on  the  same  day, 
he  told  the  vendor  that  the  horse  was  for  his  wife, 
and  asked  him  to  send  it  to  a  distant  city,  which  was 
done.  On  arrival  the  husband  directed  his  servant  to 
take  the  horse  to  another  place  and  put  it  in  a  stable 
where  he  kept  his  own  horses.  The  husband  paid  all  the 
expense  of  transportation.  Twice  before  the  donor's  death 
the  horse  was  used — once  by  the  husband  when  taking 
his  wife  to  see  a  relative,  and  once  to  carry  a  messenger 
for  a  physician  for  him.  The  wife  while  the  horse  was 
being  transported  from  the  place  of  sale  to  the  stable  of 
the  husband,  was  informed  by  him  that  the  horse  was  a 
gift  to  her.  On  these  facts  the  court  held  that  there  was 
a  good  delivery.  "  We  think,"  said  the  court,  "  when 
the  facts  to  which  we  have  already  adverted  as  evidential 
of  the  husband's  intention  are  carefully  considered,  the 
transaction  will  appear  as  an  original  purchase  by  the 
husband  for  the  wife,  with  the  knowledge  on  the  part  of 
the  vendor  before  the  bargain  was  in  any  way  consum- 
mated, or  executed  by  either  party,  that  the  horse  was 
bought  for  the  wife,  and  that  the  title  was  to  pass  directly 
to  her  as  far  as  the  intent  of  the  parties  could  make  it 
hers,  so  that,  as  between  husband  and  wife,  the  consum- 
mation of  the  gift  is  found  in  the  execution  of  the  note 
on  the  part  of  the  husband  which  purchased  for  her  the 
horse ;  and  when  the  horse  was  delivered  in  Brooklyn 
[the  place  where  the  vendor  agreed  to  deliver  it],  it  was 
delivered  as  hers,  and  then  became  hers  subject  only  to 
such  right  as  the  law  would  give  the  husband  as  trustee 
for  the  wife."  ^ 

1  Wheeler  v  Wheeler,  43  Conn.  503.    A  hnsbanrl  gave  a  chattel  mortgage  on  Iiis 
household  goods.     After  sale  at  his  dwelling-house,  under  the  mortgage,  the  pur- 


154  Gifts. 

171.  Horse  Retained  by  Husband  in  His  Own 
Stable — Horse  in  Livery  Stable. — If  a  husljaiid  at- 
tempt to  give  Lis  wife  any  of  liis  horses  then  owned  by 
him  and  kept  in  a  stable  not  his  own,  or  in  a  public  livery 
stable,  with  his  other  horses,  mere  words  of  gift  will  not 
consummate  the  gift.  In  such  an  instance  the  indicia  of 
ownership  in  the  husband  continues  the  same  after  the 
j)retended  gift  as  before ;  and  something  more  is  necessary 
to  complete  it.' 

172.  Remarks  on  Sufficiency  of  Delivery  by 
Husband  to  Wife. — In  judging  of  the  sufficiency  of 
the  delivery  of  the  subject-matter  of  the  gift  to  the  wife 
by  the  husband,  their  relationship  in  the  actual  transac- 
tions of  the  affairs  of  life,  and  the  thing  given  must  always 
be  considered.  In  the  case  of  a  horse  or  cow,  nothing  can 
be  more  natural  than  that  there  need  be  no  visible  transfer 
of  the  possession  to  pass  the  title.  It  cannot  be  expected 
that  there  will  be  a  manual  transfer  of  the  animal.  The 
common  practice  of  the  husband  caring  for  and  controlling 
such  property  of  the  wdfe  is  a  very  j3otent  factor.  Who 
can  better  take  care  of  the  j^roperty  than  the  husband  ? 
Must  she  feed  and  care  for  it  or  take  it  to  her  separate 
farm  or  stable,  if  she  have  any?  Must  the  husband  bring 
the  horse  to  his  wife,  deliver  to  her  the  rein,  and  sa}'',  "  This 
is  your  horse  ?"  or  must  the  horse  be  in  their  actual  pres- 
ence wlien  the  words  of  gift  are  pronouced  ?  We  do  not 
believe  these  things  are  requisite  to  a  valid  gift  of  such 
animals  ;  but  if  the  husband  use  formal  words  of  gift,  and 

chaser  said  to  tlie  mortgagor's  wife,  ''  I  give  you  tliese  and  all  the  property  I  have 
purchased  to-day."  The  property  remained  in  the  liouse  used  by  the  husband  and 
wife.  It  was  held  that  there  was  a  good  gift:  Allen  f.  Cowan,  23  N.  Y.  502.  A 
purchase  of  debentures,  the  wife  drawing  interest,  purchased  for  her,  uj^held  as  a 
gift:  Bland  v.  Macculloch,  9  W.  R.  65. 
1  Wheeler  v.  Wheeler,  43  Conn.  503,  509. 


Delivery.  155 

then,  either  by  her  express  request  or  by  an  implied  re- 
quest, cares  for  the  animal  even  at  his  own  expense,  and 
thereafter  regards  it  as  her  property,  the  gift  is  valid, 
especially  so  if  the  animal  is  on  the  home  farm  or  prem- 
ises, and  even  so  if  at  a  distance  on  the  donor's  j^remises 
or  under  his  control.  But  these  statements  are  inappli- 
cable to  a  gift  of  ornaments  for  her  person,  or  of  such  arti- 
cles as  are  habitually  retained  by  a  wife  in  her  separate 
possession,  although  their  place  of  deposit  is  only  in  a 
drawer  of  a  bureau  or  dressing-case  of  which  all  the  other 
drawers  are  filled  with  the  husband's  exclusive  property. 
In  such  an  instance  there  must  be  some  manual  con- 
trol by  the  wife  of  the  article  given.  The  habits  and 
practices  of  families,  of  every  common-day  life,  is  a  potent 
factor  in  determining  the  question  of  delivery.  For  in- 
stance, will  it  be  claimed  that  a  wife's  wearing  apparel  is 
not  in  her  exclusive  possession,  although  they  may  hang 
in  the  same  closet,  or  on  the  same  peg,  with  her  hus- 
band's ?  If  a  husband  gives  his  wife  a  dress,  we  think 
she  must  come  into  the  actual  and  physical  possession  of 
it  to  perfect  the  gift,  a  possession  that  is  radically  different 
from  that  of  a  horse  or  cow  given  her  by  him.  Many 
other  illustrations  can  be  cited,  but  these  are  sufficient. 
So  there  is  no  doubt  that  the  condition  of  the  family  may 
be  considered  in  determining  what  is  a  sufficient  act  of 
delivery.  A  family  living  in  one  or  two  rooms  nuist  nec- 
essarily have  their  property  of  the  character  which  is  kept 
in  the  house  much  in  common  and  in  mutual  possession; 
wdiile  one  of  wealth,  having  a  large  and  commodious 
house  or  mansion,  will  keep  their  individual  property 
less  commingled  than  their  poor  neighbors  in  strait- 
ened circumstances.  What  would  be  n  delivery  in  the 
one  might  warrant  the  jury  or  court  in  finding  was  not  in 
the  other.     The  relative  situation  of  all  the  parties  must 


156  Gifts. 

be  considered  along  with  the  subject-matter  of  the  gift, 
and  the  customs  and  practices  of  families  in  the  walks  of 
life  occu[)ied  by  the  donors  and  donees.  "  It  is  not  to  be 
expected,"  said  the  Supreme  Court  of  Alabama,  "  that  a 
wife  would  accept  a  gift  of  a  carriage  and  horses,  as  she 
would  a  watch  or  a  jewel,  from  her  husband.  If  he 
brings  such  a  gift  to  the  house  where  she  is  tarrying, 
with  the  declared  intention  of  bestowing  it  upon  her, 
causes  her  name  to  be  graven  on  the  carriage,  calls  her 
out  to  try  it,  tells  her  it  has  been  bought  for  her,  and  that 
it  is  hers  and  not  his,  and  leaves  it  in  her  possession  and 
under  her  control,  and  she  remains  in  possession  of  it, 
claiming  it  and  controlling  it  as  her  own,  as  a  gift  from 
her  husband,  until  his  death — that  is  a  sufficient  delivery 
to  perfect  the  gift.  In  such  cases  by  delivery  is  not  meant 
an  actual  manual  delivery,  but  any  circumstances  amount- 
ing to  a  clear  demonstration  of  the  intention  of  the  donor 
to  transfer  and  the  donee  to  accept  the  thing  given,  and 
which  puts  it  into  the  power  of  the  donee  or  gives  such 
authority  to  take  possession  of  the  thing  given,  is  all  that 
is  necessary  to  perfect  the  gift."  ^ 

173.  MoxEY  Deposited  ix  Joint  Names  of  Husband 
AND  Wife. — So  strict  has  the  rule  requiring  a  delivery 
been  drawn  that  an  agreement  between  a  husband  and 
wife,  that  moneys  deposited  in  a  savings  bank,  in  their 
joint  names,  and  belonging  to  them  jointly,  shall  become 

'Goree  v.  WaltJiall,  44  Ala.  161.  Wliere  slaves  were  given  by  parol  to  a  mar- 
ried woiiuin,  who  tiieiiceforth,  during  her  husband's  lifetime,  uniformly  asserted 
title  and  possession  in  herself,  to  her  sole  and  separate  use,  to  which  assertions  her 
husband  unif  )rmly  assented,  it  was  held  that  she  and  not  the  liusband  had  pos- 
ses-<inn.  and  that  he  had  not  reduced  tiiem  to  his  possession  :  Gillespie  v.  Burleson, 
28  Ala.  5.51 ;  Smith  v.  Hardy.  36  Wis.  417  ;  Miller  v.  Miller,  3  P.  Wms.  356.  De- 
livery of  hor.se :  Armitage  v.  Mace,  96  N.  Y.  538  ;  S.  C.  16  J.  &  S.107.  Property 
given  U)  wife  and  kept  on  her  own  farm  :  Smiih  v.  Hardy,  30  Wis.  417.  See 
Brown  i'.  Niethammer,  141  Pu.  St.  114. 


Delivery.  157 

at  the  death  of  either  wholly  the  property  of  the  other, 
it  has  been  held  is  not  a  valid  gift.^ 

174.  Delivery  by  Parent  to  Child — Infant. — 
Where  the  gift  is  by  a  parent  to  his  child  who  is  a  mem- 
ber of  his  family — residing  with  the  parent — especially 
if  he  is  an  infant,  what  would  be  deemed  an  insufficient 
delivery  under  other  circumstances  will  be  accepted  as 
sufficient.  In  an  unreported  South  Carolina  case  ^  it  was 
said :  "  There  is  a  distinction  to  be  made  between  cases 
where  the  donor  and  donee  live  ajmrt,  and  those  where 
they  necessarily  live  together.  In  the  former  it  has  been 
held,  ever  since  Twyne's  case,  that  where  the  2:)ossession 
continued  in  the  donor  unexplained,  the  gift  would  be 
deemed  fraudulent.  But  in  the  case  of  a  father  and  a 
child,  who  from  their  connection  must  live  together,  at 
least  until  the  child  becomes  of  age,  it  would  have  the 
effect  of  destroying  all  gifts,  to  say  that  the  possession 
must  be  considered  that  of  the  father."  In  another 
case  in  the  same  State  it  was  said :  "  In  this  case  pos- 
session and  payment  of  taxes  cannot  be  considered  badges 
of  fraud,  for  the  donees  were  infants  of  tender  years,  and 
therefore  incapable  of  taking  charge  of  the  property."  ^ 
"  The  donee,"  said  the  Suj^reme  Court  of  Alabama,  "  on 
account  of  his  infancy,  was  not  entitled  to  actual  pos- 
session of  the  slaves,  and  could  do  no  act  to  prejudice  his 
rights,  and  inasmuch  as  he  could  not  act  in  respect  to  the 
property,  it  seems  necessarily  to  follow  that  he  cannot  be 
injured  by  an  omission  to  act.""^  In  the  case  just  cited  the 


iDrew  V.  Hagertv,  SI  Me.  231. 

=!  Executors  of  Curry  v.  Ellerbe   (1820),  quoted   in   Howard   v.  Williams,   1 
Bailey,  L.  575.     See  Reid  v.  Colcock,  1  N.  &  McC.  592. 
^  Jacks  V.  Tnnno,  3  Deasus.  1. 
*Sewall  V.  Glidden,  1  Ala.  52. 


158  Gifts. 

donee  was  under  twenty-one  years  of  age,  and  resided 
with  his  father  who  gave  him  a  slave.  The  shave  never 
was  under  the  actual  management  or  control  of  the  son, 
but  remained  under  the  control  and  management  of  the 
father,  the  donor,  until  the  latter  died,  which  event  took 
place  before  the  son  was  of  age.  The  father  received  the 
hire  of  the  slave  for  his  own  use,  sending  him  to  a  distant 
city  to  be  hired  out,  and  his  agent  sent  his  hire  to  the 
father.  The  son  resided  with  his  father  until  his  death. 
It  was  held  that  there  was  a  valid  gift  of  the  slave.^  A 
father  called  up  his  son  and  a  slave,  and  in  the  presence 
of  witnesses  declared  that  he  gave  the  negro  to  the  son. 
The  son  was  a  minor  living  w^ith  his  father.  The  father 
kept  the  negro  on  the  farm,  directed  and  ordered  him  in 
his  work  just  as  he  did  the  slaves  he  owned,  and  he  there 
remained  until  after  the  son  arrived  at  age,  when  the  latter 
went  to  the  Texas  war.  The  slave  was  levied  upon  as  the 
property  of  the  father  after  the  son  became  of  age.  The 
transaction  w^as  held  to  be  a  valid  gift.^  A  husband 
handed  his  wife  a  note,  saying  to  her  that  it  was  for  her 
and  their  seven-year-old  child.  She  took  and  kept  it, 
thouo-h  he  sometimes  drew  and  used  the  interest.  This 
was  held  to  be  a  valid  gift  to  both  of  them.^  A  father 
procured  a  brand  to  be  recorded,  according  to  the  statute, 
in  the  name  of  his  minor  child,  and  branded  certain 
cattle  with  this  brand,  with  the  avowed  object  of  making 
a  gift  of  the  cattle  to  the  child.     It  was  held  that  there 


1  Sewall  V.  Glidden,  1  Ala.  52.  See  Section  176.  The  relationship  of  the  donor  and 
donee  must  be  shown,  and  the  circumstances  under  whicli  they  are  living:  Hille- 
brant  v.  Brewer,  6  Tex.  45;  Sims?-.  Sims,  8  Port.  (Ala.)  449.  Gift  by  father  to 
his  daughter  of  a  piano,  which  was  kept  in  the  father's  home,  valid  :  Pierson  v. 
Heisey,  19  la.  114     See  Section  137. 

2  Rector  v.  Danley,  14  Ark.  304;  S.  C.  5  Eng.  211  ;  Dodd  v.  McCraw,  3  Eng. 
83  ;  Lowther  v.  Lowther,  30  W.  Va.  103. 

2  Mack  V.  Mack,  5  T.  &  C.  (N.  Y.)  528. 


Delivery.  159 

was  a  valid  gift,  although  he  retained  and  cared  for  the 
cattle  on  his  farra.^  A  father  at  different  times  signified 
his  intention  to  give  certain  negroes  to  his  daughter. 
One  time  when  she  had  one  of  the  negroes,  a  child,  in  her 
arms,  her  mother  observed  to  certain  persons  present  that 
she  ought  to  have  the  negroes,  speaking  of  those  in  ques- 
tion, and  went  on  to  observe  that  her  husband  had  mven 
them  to  the  daughter.  The  father  was  present  and  an- 
swered that  that  had  been  already  done.  This  was  held 
to  be  a  sufficient  gift.^ 

175.  Possession  of  Donor — Parents  in  Possession 
OF  Donee — Infant — Guardian. — The  possession  of  the 
parent,  the  natural  guardian  of  his  infant  child,  who 
makes  a  present  to  such  child  and  retains  the  possession 
of  the  article  given,  is  the  possession  of  the  donee,  or  at 
least  such  possession  is  not  inconsistent  with  such  donee's 
title.  In  such  an  instance  there  is  no  presumption  of 
fraud.  As  the  parent  is  entitled  to  the  possession  of  his 
minor  child's  property,  the  law  does  not  require  him  to 
make  a  formal  delivery  to  the  child,  when  he  must  at  once 
repossess  himself  of  the  property  given.^ 

1  Hillebrant  v.  Brewer,  6  Tex.  45.  This  case  turned  upon  the  fact  of  the  cattle 
havinw  been  branded  with  the  child's  brand;  for  that  was  construed  as  a  s_vm- 
bolical  delivery.  Declarations  of  the  donor  that  he  made  the  gift  is  admissible  : 
Carter  v.  Buchannon,  3  Geo.  513.  "  We  think  that  there  was  no  error  in  charging 
that  the  simple  fact  of  the  donor's  retaining  possession  of  the  thing  given,  is 
snfBciently  explained  by  showing  that  the  donee  lives  with  him  and  is  a  minor, 
being  his  child,  or  standing  in  the  place  of  his  child.  This  we  think  is  good 
law:"  Ector  v.  Welsh,  29  Geo.  443.  Colt  on  farm  :  Porter  v.  Gardner,  60  llun, 
571. 

-  Davis  V.  Davis,  1  Brev.  371.  If  apparel  is  put  on  a  boy  by  his  father,  it  is  a 
valid  ^'ift  to  the  boy:  Hayne's  Case,  12  Coke,  113  ;  so  a  watch  :  Smith  v.  Smith, 
7C.  &P.  401. 

3  Howard  V  Williams,  1  Bailey,  L.  575;  Davis  v.  Garrett,  18  S.  W.  Rep.  113; 
Smith  V.  Littlejohn,  2  McC.  362  ;  Kid  v.  Mitchell,  1  Nott.  &  McC.  334.  The  eise 
of  Madden  v.  Day,  1  Bailey,  L.  337,  has  a  dictum  that  there  must  be  an  absolute 
delivery ;  but  in  the  case  of  Howard  v.  Williams,  supra,  this  dictum  is  denied. 


160  Gifts. 

176.  IxsTAiSrcES  of  Imperfect  Delivery  by  Father 
TO  Child. — A  father  owning  a  woman  slave,  sold  her  and 
then  rescinded  the  sale.  He  then  called  the  woman  into 
the  yard,  and  his  daughter  Mary,  a  little  girl  six  years 
old,  to  the  door  of  his  house,  and  in  the  presence  of  sev- 
eral persons,  his  daughter  and  the  slave,  calling  on  those 
present  to  take  notice,  declared  that  the  woman,  naming 
lier,  was  the  negro  of  his  daughter ;  and  further  said  : 
"  In  the  presence  of  you  all,  I  give  this  negro  to  my 
daughter  Mary."  Previous  to  that  time  he  frequently 
declared  that  he  intended  to  give  the  woman  to  his 
daughter ;  and  afterward,  referring  to  what  had  taken 
place  at  his  house  in  the  presence  of  witnesses,  declared 
that  he  had  thus  given  her.     It  was  held  that  the  evi- 

And  see  Smith  v.  Henry,  2  Biii'ey,  L.  118,  122;  Rector  v.  Daniel,  14  Ark.  304. 
The  possession  of  a  father  of  a  slave  given  by  him  to  his  infant  child  is  the  sanie 
as  if  a  stranger  had  made  the  gift  and  the  fatlier  took  possession  of  the  slave: 
Dodd  V.  Mc'Jraw,  3  Eng.  (Ark.)  83.  In  this  case  it  was  said  :  "  Where  there  are 
many  persons  living  together,  constituting  one  family,  and  there  are  slaves  in  the 
service  of  the  family,  subject  to  the  occasional  order  of  each,  the  possession  in  law 
is  considered  and  regarded  as  in  those  of  the  family  who  have  right  to  the 
property ;  and  if  in  such  ca^e  an  infant  be  the  real  owner  and  have  right  to  the 
slaves,  the  infant  will  be  regarded  as  in  the  possession,  although  the  father  con- 
trols and  causes  them  to  woi'k  as  he  pleases;  and  where  many  persons  are  in  the 
enjoyment  of  property,  be  these  adults  or  infants,  in  part,  those  who  trust  upon 
the  faith  of  the  p'operty  are  bound  to  discriminate  and  ascertain  at  their  peril 
who  has  title  among  those  using  it.  Where  the  gift  is  made  to  an  infant  and  the 
father  takes  possession,  he  holds  as  natural  guardian,  and  tiie  possession  is  tlie 
infant's;  and  such  a  case  is  not  within  the  statute  of  frauds,  so  as  to  subject 
the  property  to  the  creditors  of  the  father.  This  doctrine  is  well  settled  by  the 
authorities.  If  the  possession  of  the  father,  of  property  given  to  his  child  by  a 
stranger,  is  the  possession  of  the  child,  it  is  equally  so  where  the  gift  is  directly 
made  by  the  father  himself.  There  can  be  no  difference  in  principle."  During 
his  last  illness,  a  father  expressed  a  desire  to  his  daughter  to  give  her  his  horses 
and  carriage,  but  did  not  request  her  to  take  possession  of  them  nor  direct  the 
stable-keeper  to  deliver  tiiem  to  her;  nor  was  it  shown  that  there  was  any  actual 
transfer  or  change  of  possession,  though  she  used  them  afterward  and  the  coacli- 
man  obeyed  her  orders.  It  was  h=;ld  that  there  was  no  gift :  Delmotte  r.  Taylor, 
1  Redf.  417.  The  decision  in  Cranz  v.  Kroger,  22  111.  74,  that  a  father  may 
revoke  a  gift  made  by  him  to  his  minor  son,  is  not  the  law:  Kellogg  v,  Adams, 
51  Wis.  13S  ;  Kerrigan  v.  Rautiga  i,  43  Conn.  17. 


Delivery.  161 

dence  of  a  gift  was  incomplete,  and  that  to  perfect  the 
daughter's  title,  the  father  should  have  parted  with  the 
dominion  of  the  slave  in  her  flivor.^     A  father  standino- 

o 

on  the  piazza  of  his  house,  in  the  presence  of  his  wife  and 
daughter,  pointed  to  a  colt,  at  the  time  standing  with  its 
mother  near  by,  and  said  to  the  daughter  :  "  I  give  it  to 
you,"  After  that  the  colt  was  known  as  the  daughter's 
property  and  so  regarded  by  the  family  and  the  neigh- 
bors. The  daughter  was  only  twelve  years  of  age.  AVlien 
the  father  died  the  colt  was  one  or  two  years  old,  and  had 
never  been  out  of  his  actual  possession.  She  lived  with 
her  father  until  his  death,  and  afterward  with  her  mother 
and  her  second  husband.  It  was  held  that  there  never 
was  a  valid  delivery."^  A  son  under  age,  living  with  and 
working  for  his  father  on  his  farm,  was  told  by  the  latter 
that  "  he  might  have  the  colt,  if  he  would  raise  it."  After 
that  the  son  claimed  the  colt,  but  it  remained  with  the 
father's  horses,  and  was  fed  with  them.  The  father,  with 
the  consent  of  the  son,  traded  the  colt  for  a  mule,  which 
was  put  upon  the  farm,  the  son  still  claiming  and  using 
it  when  he  saw  fit,  and  it  was  also  used  by  the  father  on 
the  farm.  The  father  left  home  some  time  afterward,  on 
account  of  domestic  trouble,  and  took  the  mule  with  him 
and  kept  it  two  or  three  years  until  his  death.  The  son 
never  took  the  mule  from  the  farm,  though  he  himself 
left.  Several  times  the  father  said  the  mule  was  the  son's,, 
and  when  any  one  wanted  to  hire  it,  the  father  referred 
him  to  the  son,  saying  :    "  If  he  will  let  you  have  it,  all 

'  Sims  V.  Sims,  2  Ala.  117 ;  S.  C.  8  Port.  449.  "  No  act  was  done,"  said  the 
court,  •'  which  can  be  regarded  as  a  delivery,  or  which  seems  to  hare  been  in- 
tended as  sucli." 

While  the  court  holds  that  it  does  not  reach  the  case  of  Sewall  v.  Glidden,  1 
Ala.  52,  referred  to  in  Section  174,  we  think  it  was  mistaken.  See  Ivey  v.  Owens, 
28  Ala.  641, 

2  Brewer  v.  Harvy,  72  N,  C.  176, 
11 


162  Gifts. 

right."  On  such  occasions  the  son  received  the  hire. 
The  son  never  demanded  the  mule  of  his  father.  It  Avas 
held  that  there  was  no  delivery,^  A  father  gave  his  ten- 
year-old  son,  living  with  him,  a  colt  one  year  of  age.  The 
father  continued  to  feed  and  use  the  horse  as  his  own 
until  his  death,  which  took  place  soon  after  ;  and  after  his 
death  it  remained  with  his  widow,  who  believed  it  was 
hers.  Once  the  father  refused  to  sell  the  horse,  assigning 
as  a  reason  that  he  had  given  it  to  his  son.  It  was  held 
that  this  did  not  show  a  valid  gift,  for  the  reason  that 
there  was  no  delivery.^ 

177.  Purchase  of  Gift  by  Parent  for  His  Child. — 
Where  a  parent  purchases  a  gift  for  his  child,  the  question 
of  delivery  is  often  greatly  simplified,  just  as  where  a  hus- 
band purchases  a  gift  for  his  wife.^  In  Alabama  a  case 
arose  somewhat  similar  to  a  purchase  by  a  father  for  his 
child.  A  father  was  in  debt,  and  his  creditor  had  an 
execution  against  him  ;  so  they  two  agreed  that  the  slave 
should  be  sold  on  the  execution,  be  bid  in  by  the  execu- 
tor's plaintiff,  be  redeemed  by  the  father,  and  on  redemp- 
tion should  become  the  projDcrty  of  his,  the  execution  de- 
fendant's, son.  This  was  done  and  the  slave  delivered  to  the 
donee.  The  gift  was  held  valid.  The  court  considered 
that,  as  soon  as  the  i:)urchase  was  made  and  the  possession 
changed  according  to  the  agreement,  the  change  of  title  or 
interest  as  between  the  father  and  son  was  consummated.* 

178.  Purchase  by  the  Child  with  the  Thixg 
Given — Eight  of  Child  to  the  Article  Purchased 
— Sale  of  Gift. — A  purchase  by  the  donee  of  an  article 

'  Medlock  v.  Powell,  96  N.  C.  499. 

2  McFarlane  v.  Flinn,  8  Nov.  Sco.  D.  141. 

^See  Sections  170.  245. 

*  Smith  D.Wiggins,  3  Stew.  (Ala.)  221. 


Delivery.  163 

with  the  subject-matter  of  the  gift,  for  instance,  by  trad- 
ing, with  the  donor's  acquiescence,  will  operate  to  render 
the  original  transaction  a  valid  gift,  when,  if  the  donee 
retained  the  original  subject-matter  of  the  gift,  it  might 
be  doubtful  if  the  delivery  was  sufficient.  Thus,  where  a 
daughter  (an  adult,  it  would  seem),  residing  with  her 
father,  and  who  continued  to  reside  with  him  as  Ions:  as 
he  lived,  was  given  a  colt,  of  wdiich  she  had  possession 
only  at  their  residence,  and  which  eight  or  nine  years 
afterward  she  exchanged  for  a  mare,  which  she  kejot  on 
his  farm  as  long  as  he  lived,  it  was  held  that  the  mare  was 
her  j^roiDcrty.  During  his  life  the  father  used  the  mare, 
but  always  regarded  it  as  his  daughter's.  "  This  right  of 
the  father,"  said  the  court,  "  to  reclaim  his  gift  to  his 
child  while  living  with  him  must  be  confined  to  the  gift 
itself,  and  cannot  be  followed  in  any  other  article  of 
property  in  the  purchase  of  which  the  proceeds  of  said 
gift  may  have  been  invested."  ^  So,  if  the  donor  permits 
the  donee  to  sell  the  gift  and  purchases  of  him  with  the 
proceeds  other  property,  the  gift  is  valid.^ 

179.  Gift  by  Father  to  Child  of  Lottery  Ticket. 
— An  often  cited  case  on  the  question  of  delivery,  when 
the  donor  and  donee  bear  the  relation  of  parent  and  child, 
is  that  of  a  gift  of  a  lottery  ticket.  In  that  case  a  father 
bought  six  lottery  tickets.  It  does  not  appear  that  he 
boufirht  the  tickets  for  the  child.  He  took  the  tickets 
home,  and  said  they  were  for  himself  and  wife  and  his 
four  children,  and  he  wrote  the  names  of  each  on  the 
tickets  and  put  them  in  his  desk.  At  this  time  the 
children  were  not  present.  A  daughter,  eight  years  of 
age,  drew  a  jDrize ;  and  when  her  brother  said  she  ought 

'  Lowtlier  V.  Lowther,  30  W.  Va.  103. 
^Carpenter  v.  Davis,  71  111.  o95. 


164  Gifts. 

to  share  its  proceeds  with  the  others,  the  father  said, 
"  No,  she  shoiikl  not  divide  it ;  the  ticket  was  her  own, 
and  the  prize  money  [$5,000]  belongs  to  her,  and  she 
shall  have  the  whole  of  it,  and  I  will  put  it  in  trade  for 
her."  The  father  made  other  and  similar  declarations, 
all  to  the  effect  that  the  money  drawn  was  his  daughter's. 
The  jury  having  found  that  there  was  a  valid  gift,  their 
verdict  was  upheld.^ 

180.  Gift  by  Pakent  to  Adult  Child — Person  a 
Member  of  His  Family — Where  the  donee  is  a  mem- 
ber of  the  donor's  family,  whether  he  is  the  donor's  child 
or  one  not  related  to  him,  the  rule  with  respect  to  delivery 
is  very  much  relaxed  ;  and  the  acts  which  would  be  con- 
sidered as  not  constituting  a  sufficient  delivery  as  between 
persons  not  members  of  the  same  family  will  be  con- 
sidered as  sufficient  in  such  instances.  Thus  where  a 
father  gave  his  adult  daughter,  living  in  the  family,  a 
calf  whose  dam  had  died,  if  she  would  bring  it  up,  and  she 
brought  it  up  by  hand,  and  it  was  fed  on  his  farm  ;  and 
after  it  became  a  cow  the  milk  was  used  in  his  family, 
and  no  charge  was  made  by  the  father  for  the  board 
of  the  daughter  or  for  the  keeping  of  the  cow,  nor  by  the 
daughter  for  her  work  or  for  the  milk,  it  was  held  that 
there  was  a  valid  gift."^  The  rule  is  the  same  where  the 
donor  resides  in  the  donee's  family.^  Where  a  parent 
placed  the  hand  of  a  slave  in  the  hand  of  his  daughter, 
declaring  at  the  time  that  he  thereby  gave  the  slave  to 
the  daughter,  tlie  dominion  of  the  slave  was  deemed  to 
have  passed  to  the  child ;  and  the  fact  that  the  donor  re- 
tained the  possession   and   control   of  the  slave,  keeping 

'Grangiac  v-  Arden,  10  Johns.  293.  This  is  a  leading  case  upon  the  question 
of  delivery. 

2  Martrick  v.  Linfield,  21  Pick.  325. 

3  Bennett  v.  Cook,  28  S.  C.  353. 


Delivery.  1G5 

him  on  his  plantation,  was  deemed  explained  by  the  fact 
that  the  slave  was  a  mere  youth,  who  was  then  of  no 
j)rofit  to  the  donee,  and  the  father  kept  him  to  save  his 
daughter  from  the  expense  of  caring  for  hini.^  A  brother 
and  sister  lived  witli  then-  father  on  the  latter's  farm. 
The  father  was  feeble,  and  on  that  account  the  brother 
had  the  whole  management  of  the  farm,  and  provided  for 
tlie  common  table  of  tlie  entire  household.  The  father 
owned  a  carriage  which  was  kept,  when  not  in  use,  in  an 
out-house  on  the  farm,  built  by  the  brother  at  his  own  ex- 
pense. The  father  called  the  members  of  the  family  into 
the  dining-room  of  the  house,  and  in  the  presence  of  all 
gave  the  carriage  to  the  daughter,  requesting  all  to  wit- 
ness the  gift.  At  the  time  the  carriage  was  given  it  was 
locked  up  in  the  out-house,  and  no  one  went  nearer  to  it 
than  the  dining-room.  Sometime  during  the  day,  how- 
ever, the  daughter  and  her  brotlier,  as  they  had  been  ac- 
customed to  do  for  two  years,  washed  the  carriage.  After 
the  time  of  the  gift,  the  carriage  was  kept  in  the  out- 
house, and  was  used  by  the  members  of  the  family  as  it 
had  been  previously  used,  except  that  they  no  longer 
asked  the  father  for  the  privilege  of  using  it,  as  was  for- 
merly their  universal  habit.  The  flither  exacted  a 
promise  of  his  daughter  that  she  w^ould  wash  and  keep  it 
clean,  and  this  was  a  condition  of  the  gift.  This  she  did. 
The  brother  claimed  that  after  the  carriage  was  given  to 
the  sister,  as  she  claimed,  the  father  gave  it  to  him  ;  and 
that  he  procured  a  key  and  went  to  the  carriage  house 
and  took  it.  It  was  held  that  there  was  a  valid  gift  to 
the  daughter.^ 

'  Ivey  V.  Owens,  2S  Ala.  641. 

2  Fletcher  v.  Fletcher,  55  Vt.  325.  In  Irons  r.  Smallpiece,  2  B.  &  Aid.  551,  a 
father  gave  his  son  some  colts,  about  twelve  months  before  his  death.  The  colts, 
however,  remained  in  the  father's  possession  until  his  death.  About  six  months 
before  his  death  the  son  went  to  a  neighboring  market  to  purchase  hay  for  the 


1G6  Gifts. 

181.  Property  Given  in  Adverse  Possession  of 
Third  Person. — Property  that  is  in  the  adverse  posses- 
sion of  a  third  j^erson  is  incapable  of  gift ;  for  the  reason 
that  there  can  be  no  delivery.^  This  is  very  well  illus- 
trated by  a  Massachusetts  case.  In  that  instance  A  held 
a  raffle,  the  prize  being  a  cow.  He  decided  in  B's  favor ; 
but  C,  without  A's  consent,  took  the  cow  from  A's  prem- 
ises, and  removed  her  to  his  own  field.  A  gave  B  a  writ- 
ten instrument,  stating  that  he  delivered  the  cow  to  him ; 
and  then  demanded  the  cow  of  C,  on  the  ground  that  he 
wanted  her  to  deliver  to  B.  A  afterward  brought  re- 
plevin for  the  cow  against  C,  but  the  trial  court  decided 
that  he  could  not  maintain  the  action,  for  the  reason  that 
she  had  become  the  property  of  B ;  but  the  Supreme 
Court  held  the  gift  void,  and  that  no  property  had  passed 
to  B.     "  In  the  case  at  bar,"  said  the  court,  "  when   the 

colts,  but  finding  the  price  very  high  he  did  not  purchase.  On  so  reporting  to 
his  father,  the  latter  agreed  to  furnish  the  son  any  hay  the  colts  might  need  at  a 
stipulated  {)rice,  and  the  sou  agreed  to  pay  for  it.  No  hay,  however,  was  fur- 
nished until  about  four  days  before  the  father's  death.  It  was  held  that  there 
was  no  gift. 

The  badge  of  fraud,  it  was  held,  was  not  rebutted,  in  the  case  of  a  gift  where 
the  donor  retained  possession  of  the  slave  that  was  given,  by  reason  of  the  fact 
tiiat  the  donee  was  tiie  donor's  sister-in-law,  and  lived  in  his  family:  Smith  v. 
Ilenrv,  2  Bailey,  L.  118.  A  and  B  were  living  togetlier  in  the  same  room.  A 
died,  and  B  claimed  a  certitieate  of  dei)osit  i-sued  to  A,  as  a  gift.  B  said  that  A 
had  promised  to  give  him  the  certificate,  and  tliat  he  subsequently  found  it  in  an 
old  boot  kept  under  a  bed  in  the  room  in  which  he  and  .\  lived  together,  and 
that  thev  had  both  been  in  the  habit  of  keeping  their  valuables  in  that  manner. 
It  did  not  nppear  whether  he  found  the  certificate  before  or  after  A's  denth.  It 
was  iiehl  that  there  was  no  delivery:  Buschain  v.  Hughart,  28  Ind.  449.  See 
where  two  resided  together,  and  the  gift  was  upheld  :  Peufield  v.  Thayer,  2  E. 
D.  Smith,  305;  Carradine  v.  Carradine,  58  Miss.  2S6.  In  West  Virginia  it  is 
held  that  if  the  agent  of  the  donee,  residing  with  the  donor,  be  authorized  to  ac- 
cept and  receive  the  gift,  so  that  actual  delivery  to  him  is  a  delivery  to  such 
donee,  and  the  gift  is  in  fact  so  delivered  to  and  accepted  by  him  at  the  place  of 
the  donor's  residence,  his  possession  thereof  at  sucli  place  of  residence  will  be  in- 
sufficient to  make  it  a  valid  gift:  Dickeschied  v.  Exchange  Bank,  28  W.  Va. 
340. 

^  Scott  V.  McAlpine,  6  C.  P.  (Can.)  302;  Doering  v.  Kenamore,  86  Mo.  588. 


Delivery.  167 

plaintiff  handed  the  paper  to  Sonbar,  stating  that  he  de- 
livered to  him  the  cow,  lie  had  himself  no  possession  of 
the  property,  nor  could  he  then  exercise  any  dominion 
over  it.  It  was  in  the  actual  possession  of  one  who  held 
it,  not  as  his  servant  or  his  bailee,  but  against  him  and  in 
the  denial  of  his  right.  There  can  be  no  delivery  of  pos- 
session by  one  who  himself  has  none."  ^ 

182.  Gift  of  Gro^vixg  Crop. — If  a  donor  say  to  the 
donee  "  I  give  you  the  wheat  grown  in  that  field,"  pointing 
it  out  to  him,  or  any  other  growling  or  unliar vested  crop, 
that  is  insufficient,  for  there  is  no  delivery ;  and  even 
though  the  donee  afterward  enter  and  cut  and  carry  it 
away,  he  will  acquire  no  title.  In  such  an  instance  it 
was  doubted  if  there  could  be  a  symbolical  delivery  of 
the  crops  ;  and  it  was  also  doubted  if  there  could  be  any 
delivery  without  putting  the  donee  "  into  jDOssession  of 
the  soil." ' 

183.  Gift  of  Income  of  Mill. — The  owner  of  a  mill 
placed  it  in  the  charge  of  two  of  his  sons  for  the  purpose 
of  managing  it,  receiving  the  income  thereof,  and  paying 
it  to  his  other  children  and  grandchildren.  The  two  sons 
took  possession,  kept  an  account  of  their  transactions,  and 
paid  the  money  as  directed,  except  to  the  grandchildren, 
but  whose  share  they  paid  to  their  guardian.  It  was  held 
that  this  Avas  a  completed  gift.^ 

1  Miller  v.  Le  Piere,  136  Mass.  20. 

'^  Noble  u.  Smith,  2  Johns.  52.  Clearly  Chancellor  Kent  was  mistaken  when 
he  intimated  that  there  could  be  no  symbolical  delivery  ;  for  we  elsewhere  have 
shown  that  a  delivery  of  an  ear  of  corn  was  sufEcient  to  pass  the  title  to  a  field 
of  corn  then  nnhusked.  See  Section  139.  Kent's  opinions  as  to  what  is  neces- 
sary lo  constitute  a  delivery  must  be  received  with  caution,  in  the  light  of 
modern  cases.  He  drew  a  very  strict  rule,  following  the  early  English  caj>cs.  In 
recent  times  the  rule  of  delivery  has  been  very  much  relaxed,  unless  in  England, 
although  a  few  courts  seem  to  be  unaware  of  the  fact. 

3  Poulhiin  V.  Poullain,  79  Ga.  11 ;  S.  C.  7G  Ga.  420 ;  72  Ga.  412. 


168  Gifts. 

184.  Gift  of  Registered  Boxds. — A  donor  pur- 
chased certain  registered  bonds,  and  had  them  registered 
in  the  donee's  name.  He  retained  the  bonds  until  his 
death,  when  they  were  found  among  his  papers.  He  regu- 
larly removed  the  coupons  and  collected  the  interest,  and 
deposited  it  with  a  trust  company  in  the  donee's  name, 
and  he  gave  to  the  company  a  slij)  containing  the  donee's 
signature,  to  be  pasted  in  the  signature  book.  The  donee 
had  the  pass-book  in  which  these  deposits  of  interest  were 
credited,  but  never  drew  against  the  deposit.  It  was  shown 
that  the  donor  had  declared  that  he  wanted  to  create  a 
fund  for  the  donee's  benefit.  It  was  held  that  there  was 
a  valid  gift,  the  act  of  having  the  bonds  registered  in  the 
donee's  name  being  a  sufficient  delivery.^ 

185.  Shifting  Gift  from  One  Drawer  to  An- 
other.— Where  a  donor  told  his  wife,  who  had  the  key 
to  the  bureau  in  his  house  where  he  kept  his  securities, 
that  he  gave  to  their  daughter  two  certain  bonds,  and  told 
her  to  go  to  the  drawer  in  which  they  were  kept,  and 
transfer  them  to  another  drawer  in  the  bureau,  which  she 
did,  and  so  informed  him  several  times,  and  he  a  number 
of  times  recognized  them  as  the  property  of  his  daughter, 
expressing  a  wish  that  they  remain  uncashed  until  his 
daughter  became  of  age ;  and  the  interest  which  arose 
upon  them  in  his  lifetime  was,  by  his  direction,  paid  to 
the  daughter,  the  mother  at  all  times  retaining  the  key  to 
the  drawer  ;  it  was  held  that  there  was  not  a  sufficient  de- 
livery, and  that  the  gift  was  invalid.'-^ 

186.  Gift  of  Money  Represented  by  a  Note. — 
There  is  a  distinction  between  the  gift  of  a  note  and  the 
gift  of  the  money  it  represents  when  collected  that  some- 

1  Matter  of  Townsend,  5  Dem.  (N.  Y.)  147.     The  bonds  amoiinted  to  $120,000. 
''Bryson  v.  Brownrigg,  9  Ves.  1.     But  see  Devol  v.  Dye,  123  lud.  321. 


Delivery.  169 

times  becomes  quite  material  in  determining  tlio  sufficiency 
of  a  delivery.  Thus  where  the  holder  and  payee  of  a  note 
delivered,  shortly  before  his  death,  to  B,  with  directions 
to  collect  and  apply  it  to  certain  purposes  for  the  benefit 
of  his  wife,  but  died  before  the  money  was  collected  and 
applied,  it  was  held  that  there  was  no  gift,  because  the 
proceeds,  and  not  the  note,  was  the  thing  given ;  and  as 
such  proceeds  had  not  come  into  the  possession  of  either 
the  wife  or  B,  before  the  donor's  death,  there  was  no  suffi- 
cient delivery.^ 

187.  Delivery  of  Shares  of  Stock. — In  the  case 
of  a  gift  of  shares  of  stock  it  is  not  necessary  to  the  de- 
livery to  have  a  formal  transfer  made  upon  the  books  of 
the  company  or  corporation.  Thus  a  donor  owned  one  hun- 
dred and  twenty  shares  of  bank  stock,  included  in  one  certifi- 
cate. He  made  an  absolute  assignment  in  writing  of  twenty 
shares  to  the  donee,  and  handed  the  certificate  to  his  wife, 
to  be  kept  by  her  and  delivered  to  the  donee  at  his  death. 
At  the  time  the  donor  was  eighty  years  of  age,  in  failing 
health,  and  so  continued  until  his  death,  which  occurred 
about  five  months  thereafter.  It  was  held  that  this  was 
an  assignment  of  the  twenty  shares  of  stock,  and  passed 
the  equitable  title  to  it  to  the  donee.'^ 

188.  Gift  by  Surety  to  Principal  of  the  Debt  He 
Pays. — Where  a  father  became  surety  for  his  natural 
sons  upon  a  note,  and  when  it  fell  due  paid  the  note,  took 
it  up,  and  retained  it  until  his  death,  his  often  prior  and 
subsequently  repeated  declarations,  in  connection  with  the 
sons'  testimony,  that  the  payment  was  a  gift  of  the  debt 
were  held  sufficient  to  show  a  gift,  without  a  delivery  to 
them  of  the  note.     It  was  considered  that  the  money  paid 

*  Thompson  v.  Dorsey,  4  Md.  Ch.  149. 
^Grymes  v.  Hone,  49  N.  Y.  17. 


170  Gifts. 

was  the  gift,  and  the  payment  to  the  creditor  was  the  de- 
livery, constituting  an  irrevocable  gift.^ 

189.  Gift  by  Deed  or  Writing  Dispenses  with  De- 
livery OF  Article  Given. — A  delivery  of  the  thing 
given  may  be  dispensed  with  only  in  one  instance,  it  is 
believed,  and  that  is  where  the  donor  executes  a  written 
instrument  of  gift.  This  instrument  may  be  a  simple 
writing,  duly  signed  by  him,  or  a  duly  acknowledged 
deed.  Both  stand  on  the  same  plane.  But  the  writing 
or  deed  must  be  delivered,  either  actually  or  construct- 
ively.^ The  writing  or  deed  is  accepted  as  the  equivalent 
of  proof  of  delivery.^  "  A  gift  by  deed  is  good  between 
the  parties,"  said  the  West  Virginia  Court  of  Appeals, 
"  if  it  goes  into  effect  at  once,  without  delivery,  for  the 
delivery  of  the  deed  answers  the  place  of  the  delivery 
of  the  property,  when  the  property  is  capable  of  actual 
delivery."  ^  But  if  in  the  instrument  the  donor  reserves 
the  title  to  the  property,  until  his  death,  or  until  a  speci- 
fied time,  then  the  gift  is  void ;  for  it  stands  on  a  foot- 

^  After  the  death  of  the  father  the  sons  executed  to  the  administrator  a  note  for 
the  amount  of  the  payment,  with  interest,  on  which  a  judgment  at  law  was 
rendered;  but  upon  filing  a  bill  in  chancery  setting  up  the  gift,  a  perpetual  in- 
junction against  its  enforcement  was  decreed  :   Browns  v.  Brown,  4  B.  Mon.  535. 

2  Kuckman  v.  Ruckman,  4  N.  J.  L.  Jr.  134;  In  re  Way,  10  Jur.  N.  S.  836 ;  S. 
C.  34  L.  J.  Ch.  49 ;  13  W.  R.  149. 

^  'Wycke  v.  Greene,  11  Ga.  159  ;  Irons  v.  Sraallpiece,  2  R  &  Aid.  551  ;  Banks  v. 
Marksberry,  3  Litt.  275;  Mims  r.  Sturtevant,  18  Ala.  359;  Rlakey  v.  Blakey,  9 
Ala.  391 ;  Forney  v.  Remey,  77  la.  549  ;  Hynson  v.  Terrey,  1  Ark.  83 ;  Sewall  v. 
Glidden,  1  Ala.  52. 

*Hogue  V.  Bierne,  4  V7.  Ya.  658,  671  ;  Powell  v.  Leonard.  9  Fla.  359;  Wycke 
V.  Greene,  11  Ga.  159  ;  Ewing  ?■.  Ewing,  2  Leigh.  337.  .\  gift  hy  deed  of  '  all  the 
estate  which  he  owns  at  the  date  of  deed,  or  should  own  at  his  death,"  does  not  pass 
money  of  which  he  was  the  owner  at  his  death,  though  it  was  in  the  donor's  pos- 
session at  the  date  and  delivery  of  the  deed:  Butler  v.  Scofield,  4  J.  J  Mar.  139 ; 
Anon.,  3  Swanst.  400,  note  ;  Young  r.  Power,  41  Miss  197  ;  Walker  v.  Crews,  73 
Ala.  412;  Flower's  Case,  Nov.  67;  Bohn  v.  Headley.  7  H.  &  J.  257;  Fri-bie  v. 
M'Carty,  1  Stew.  &  Por.  56  ;  M'Ewen  v.  Troost,  1  Sneed,  185 ;  Caines  v.  Marley, 
2  Yerg.  582 ;  Nicholas  v.  Adams,  2  Whart.  17. 


Delivery.  171 

ing  with  a  promise  to  make  a  gift.  The  deed  or  writing, 
to  be  effectual,  must  be  delivered  with  the  intention  to 
at  once  not  only  transfer  the  title,  but  also  the  pos- 
session of  the  property,  to  the  donee.  There  must  be 
no  postponement  of  that  event.^  Upon  this  question, 
however,  as  we  have  elsewhere  shown,  there  is  some  vari- 
ance of  opinion ;  for  the  owner  of  personal  property 
may  give  it  away  by  deed,  and  in  the  instrument  reserve 
to  himself  the  right  to  use  it  during  his  natural  life." 

190.  Unsealed  Instru:ment  Not  Sufficient  to  Dis- 
pense WITH  A  Delivery  of  Thing  Given — Estoppel. — 
In  the  previous  section  no  distinction  is  made  between  a 
writing  under  seal  and  one  not  sealed,  but  in  a  few  cases 
this  distinction  is  made.  Tlius,  in  Alabama  it  is  said  that 
a  gift  by  sealed  deed  is  good  because  the  donor  is  estopped 
from  saying  that  the  2:)roperty  has  not  passed  to  the  donee, 
but  no  written  declaration,  not  under  seal,  will  consummate 
the  gift.  In  the  case  of  a  gift  by  writing,  it  is  said  that 
the  doctrine  of  estoppel  does  not  apjoly.  "  Hence,  a  parol 
declaration  of  gift  (whether  verbal  or  by  unsealed  writing) 
stands  upon  the  footing  of  a  mere  promise  to  give."     The 

'  Connor  v  Trawicks,  37  Ala.  289. 

'A  will  executed  subsequently  to  the  execution  of  the  deed  creates  no  pre- 
sumption thai  the  latter  liad  never  been  delivered,  or  th:it  it  was  not  considered 
a  valid  instrument  bv  the  jiarties:  Lewis  v.  Amer,  44  Tex.  oil).  In  Louisiana, 
under  the  civil  law,  a  gift  by  deed  was  valid,  even  tho  igh  the  donor  die  witiiout 
having  made  any  delivery  of  it,  not  having  made  any  oiher  disposition  of  tlie 
property  given:  Holmes  v.  Patterson,  5  La.  693.  A  deed  of  gift  of  a  policy  of 
insurance  delivered  t  >  a  third  persm  was  held  good,  even  though  the  donor  re- 
tained possession  of  the  policy;  an!  the  donor  having  collected  the  amount  due 
on  a  policy  when  surrendered,  as  provision  for  such  collection  wa.s  made,  he  was 
compelled  by  the  vice-chancellor  to  secure  to  the  amount  of  the  value  of  the  policy 
assigned  by  the  deed  :  Fortesque  v.  Barnetl,  3  ^My.  &  K.  30.  Wiicre  a  statute  re- 
quired the  deed  of  gift  of  a  slave  to  be  acknowledged  and  recorded,  a  defective 
acknowledgment  and  a  fnilure  to  record  wns  held  not  to  prevent  the  deed  being 
considered  as  a  parol  declaration  of  the  donor's  wishes,  and  if  a  deliverv  of  the 
slave  w:is  shown,  the  gift,  even  as  a  mortis  cauaa.  was  valid  :  Sewall  v.  Glidden,  1 
Ala  52;  Cranz  v.  Kroger,  22  111.  74  ;  Lohff  y.  Germer,  37  Tex.  578. 


172  Gifts. 

court  denied  the  claim  made  that  title  by  deed  passed  be- 
cause the  delivery  of  the  deed  was  a  symbolical  delivery, 
saying :  "  It  is  rather  upon  the  principle  of  estoppel  that, 
for  the  purpose  of  consummating  a  gift,  the  delivery  of  a 
deed  is  as  effectual  as  the  delivery  of  the  j^roperty."  Again 
it  is  said :  "Although  it  is  true  that  in  modern  times  the 
seal  has  been  stripped  of  much  of  its  ancient  force,  the  doc- 
trine of  estoppel  by  deed  is  still  maintained.  Hence,  where 
a  gift  of  personal  joroperty  is  made  by  deed,  the  delivery  of 
the  deed  transfers  the  right  to  the  property,  for  the  reason 
that  the  form  of  the  instrument  imports  a  consideration 
for  the  transfer,  and  the  maker  of  the  deed  is  estopped 
thereby  from  asserting  that  he  has  not  granted  to  the 
donee  a  power  of  control  and  dominion  over  the  property 
conveyed  by  the  deed."  ^ 

191.  Gift  by  Deed  of  Eeversionary  Interest. — 
The  assignment  by  deed  of  an  equitable  reversionary 
interest  in  personal  property  is  not  to  be  treated  as  a  mere 
agreement ;  and,  although  it  be  voluntary,  it  is  not  an 
incomplete  gift  for  lack  of  a  delivery,  but  is  a  transfer  of 
the  beneficial  interest  of  the  assignor.^ 

^  Connor  v.  Trawick,  34  Ala.  289.  Suppose,  however,  a  statute  has  wiped  out 
all  distinction  between  sealed  and  unsealed  writings  as  instruments  of  evidence, 
would  not  an  unsealed  instrument  be  as  effective  for  the  purpose  of  a  delivery  as 
a  sealed  one?  "We  think  it  would.  Earlier  ca«es  in  Alabama  support  the  rule 
announced  in  the  text:  M'Cutchen  v.  M'Cutchen,  9  Port.  (Ala.)  650,  656;  Perry 
V.  Gr;iham,  18  Ala.  822 ;  Summerlin  v.  Gibson,  15  Ala.  406  ;  Thompson  v.  Thomp- 
son, 2  How.  (Miss.)  737  ;  Miller  v.  Anderson,  4  Rich.  Eq.  1 ;  Busby  v.  Byrd, 
4  Rich.  Eq.  9;  Jaggars  v.  Estes.  3  Strobh.  Eq.  379;  Morrow  r.  Williams,  3  Dev. 
263.  Dispute  in  the  authorities  alluded  to :  Gammon  Theological  Seminary  v. 
Robbins,  128  Tnd.  85;  Payne  v.  Powell,  5  Bush.  248  (gift  held  void) ;  W^arriner 
V.  Rogers,  42  L.  J.  Ch.  58l";  16  L.  R.  Eq.  340;  21  W.  R.  766 ;  28  L  T.  N.  S.  863. 
J  was  indebted  to  P  by  bond.  P  by  deed  poll,  in  consideration  of  natural  love 
for  E,  the  wife  of  J,  agreed  that  this  bond,  and  all  benefit  and  advantage  to  be 
had  thereby,  should,  after  his  death,  be  wholly  for  the  use  of  E  and  her  issue 
by  J.  After  this  P  put  the  bond  in  suit,  but  died  before  payment  of  it.  It  was 
held  that  this  was  a  revocation  of  the  gift:  Richardson  r.  Sedgwicke,  3  Bro. 
P.  C.  576. 

2  Vogle  V.  Hughes,  2  Sm.  &  G.  18  ;  S.  C.  18  Jur  341 ;  23  L.  J.  Ch.  328 ;  Keke- 


Delivery.  173 

192.  Deed  Ii^sufficient  to  Operate  as  a  De- 
livery.— ^There  are  a  few  cases  which  hold  that  even  a 
deed  is  not  sufficient  to  operate  as  a  delivery ;  and  if  the 
property  remains  in  the  possession  of  the  donor  the  gift 
is  void.^  But  if  there  has  been  a  possession  of  the  prop- 
erty transmitted  by  the  donor  to  the  donee  it  has  been 
held  that  the  deed  estops  the  donor  from  denying  that  a 
gift  was  not  intended  and  that  no  delivery  had  been 
made.^ 

193.  Deed  or  Writing  in  a  Donatio  Mortis  Causa. 
— It  has  been  directly  decided  that  a  donatio  mortis  causa 
cannot  be  perfected  by  the  delivery  of  a  deed  without  a 
delivery  of  the  thing  given.  This  is  upon  the  ground 
that  a  gift  made  in  this  way  is  in  contravention  of  the 
statute  prescribing  certain  formalities  in  the  execution  of 
a  will,  and  that  to  thus  allow  the  deed  to  have  effect,  when 
not  executed  as  those  statutes  require  wills  to  be  executed, 
would  be  to  overturn  their  provisions.^  But  as  there  is 
no  difference  in  the  requisitions  to  make  a  perfect  de- 
livery in  a  donatio  inter  vivos  and  donatio  moiiis  causa,  it 
is  difficult  to  see  why  any  difference  should  be  drawn  in 
this  instance  ;  and  in  view  of  the  modern  cases  it  may 
well  be  doubted  if  this  old  rule  is  any  longer  the  law. 

194.  Delivery  of  Deed  at  Recording  Office. — If 
the  donor  deliver  the  deed  at  the  office  of  register  of 
deeds  for  the  purpose  of  registration,  that  is  a  sufficient  de- 

wich  V.  Manning,  1  De  G.,  Mac.  &  G.  176.     The  case  of  I\Ieek  v.  Kettlowell, 
1  Hare.  464;  S.  C.  1  Ph.  312,  is  practically  overruled. 

1  Marshall  v.  Fulgham,  4  How.  (Miss.)  216;  IVIcWillie  v.  Van  Vacter,  35  Miss. 
428,  443  ;  Carradine  v.  Collins,  7  S.  &  M.  428  ;  Smith  v.  Downey,  3  Ired.  Eq.  268 ; 
Thompson?'.  Thompson,  2  How.  (Miss.)  737. 

2  Newell  V.  Newell,  34  Miss.  385. 

5 Smith  V.  Downey,  3  Ired.  Eq.  268 ;  Tate  v.  Hilbert,  2  Ves.  Jr.  Ill ;  Smith  r. 
Ferguson,  90  Ind.  229. 


174  Gifts, 

livery  to  pass  the  title ;  ^  but  a  mere  leaving  of  the  deed 
at  that  place,  without  saying  more,  has  been  doubted  as  a 
sufficient  delivery.^ 

195.  Order  to  Agent  to  Deliver  Gift  to  Donee. 
— A  written  order  to  his  agent  to  deliver  the  subject- 
matter  of  the  gift  to  the  donee  is  insufficient  to  constitute 
a  delivery,  if  the  donor  resume  the  possession  before  ac- 
tual delivery  to  the  donee.^  But  suppose  the  agent  should 
accept  the  command  of  the  order,  and  agree  with  the  do- 
nee to  deliver  the  proj^erty  to  him  ;  would  it  not  be  a  good 
gift  ?  Would  he  not  cease  to  be  the  agent  of  the  donor 
and  become  that  of  the  donee  ?  We  think  he  would,  and 
the  gift  would  be  valid. 

196.  Delivery  of  Receipt  Sufficient. — A  receipt 
given  by  a  depositary  of  property  may  be  a  sufficient  de- 
livery of  the  property  when  such  receipt  is  delivered  to 
the  donee  of  property.  Thus  a  bond  was  in  the  hands  of 
the  donor's  attorney  for  the  purpose  of  collection.  An 
action  had  been  brought  upon  it  in  court.  The  owner 
gave  it  verbally  to  the  donee,  and  gave  him  the  attorney's 
receipt  for  it.  This  was  held  to  be  a  valid  gift  of  the 
bond,  and  that  he  could  recover  from  the  attorney  the 
proceeds  of  the  bond  which  he  had  collected.* 

197.  Consideration  for  Deed — Slaves. — In  Ken- 
tucky a  gift  by  deed  was  held  to  dispense  with  an  actual 

iPrisbie  v.  McCarty,  1  Stew.  &  Por.  o6;  Mallett  v.  Page,  8  Ind.  364;  Horn  v. 
Gartman,  1  Fla.  63;  Ruckman  v.  Kuckman,  4  N.  J.  L.  Jr.  134. 

2  M'Ewen  V.  Troost,  1  Sneed,  185. 

^  Picot  V.  Sanderson,  1  Dev.  L.  390. 

*  Elara  V.  Keen,  4  Leigh,  333  ;  Jones  v.  Silbv,  Prec.  in  Ch.  300  ;  Stephenson  r. 
King,  81  Ky.  42-5,  432.  A  delivery  of  a  receipt  for  stock  was  held  in'^nfficient : 
Ward  V.  Turner,  2  Ves.  Sen.  431,  but  this  ruling  cannot  be  regarded  as  stating 
the  law  as  laid  down  by  modern  authorities.  A  warehouse  receipt  is  sufficient : 
Gallaudet's  Case,  9  Ct.  of  CI.  210. 


Delivery.  175 

delivery  only  when  there  was  a  good  consideration  ;  but 
that  the  relationship  of  a  father  to  his  child  was  a  suffi- 
cent  consideration  to  uphold  the  gift.^  If  there  was 
no  consideration  for  the  deed,  then  the  deed  must  be  re- 
corded, by  statute,  or  the  slave  delivered.'^ 

198.  Gift  by  Deed  of  Undivided  Interest. — AVhere 
a  gift  was  made  by  deed  of  an  undivided  one-fourth  part 
of  a  chose  in  action,  it  was  deemed  a  valid  gift,  which, 
however,  could  not  be  enforced  in  a  court  of  law  but 
could  be  in  equity  ;  yet  if  it  was  to  be  construed  as  a  gift 
of  the  money  represented  by  the  chose  in  action,  the  gift 
was  invalid.^ 

199.  Deed  Not  Produced — Destroyed. — If  the  gift 
was  by  deed  and  the  property  given  was  also  actually  de- 
livered, it  is  not  necessary,  in  order  to  support  the  gift,  to 
produce  the  deed ;  for  the  fact  of  the  gift  may  be  shown 
by  parol.  But  the  withholding  of  the  deed  casts  sus- 
picion over  the  entire  transaction.^  So  if  it  is  shown  that 
the  deed  was  never  delivered,  but  it  was  destroyed  by  the 
donor,  the  donee  can  take  no  advantage  of  the  fact  that 
the  instrument  was  once  in  existence.^  But  if  such  a  re- 
tention is  shown  as  is  not  inconsistent  with  the  presump- 
tion of  a  delivery,  then  the  donor  cannot  affect  the 
validity  of  the  gift  by  destroying  the  deed ;  and  slight 
evidence  of  its  contents  is  sufficient  to  establish  the  gift.*" 

200.  Writing  Affixed  to  the  Article  Given. — If 
the  article  given  is  not  delivered,  then  writing  the  terms 

1  Bank  v.  Marksberry,  3  Litt.  275. 

==  Howard  v.  Samples,  5  Dana,  30G ;  Chadoin  v.  Carter,  12  B.  Mon.  383  ;  Mahnn 
V.  Mahan,  7  B.  Mon.  579;  Pyle  v.  Maulding,  7  J.  J.  Mar.  202.  In  Mississippi 
the  same  rule  applied  to  the  gift  of  a  slave  :  Marshall  v.  Fulgham,  4  How.  216. 

'Hogue  V.  Bierne,  4  W.  Va.  (558. 

*Blakey  v.  Blakey,  9  Ala.  391. 

SReid  I'.  Butt,  25  Ga.  28. 

6Mims  V.  Sturtevant,  18  Ala.  359,  365. 


176  Gifts. 

of  the  gift  iijoon  tlie  article,  however  certain  they  may  be, 
will  not  constitute  the  transaction  a  gift.  Thus  a  person 
wrote  on  the  parcels  of  property  the  names  of  the  persons 
for  whom  they  were  intended,  and  requested  a  person  to 
see  them  delivered  to  the  donees ;  yet  it  was  held  that 
there  was  no  gift,  for  a  want  of  delivery/  But  in  all  such 
instances  the  writins:  can  be  used  in  determinino;  the  inten- 
tion  of  the  donor ;  and  where  the  question  of  delivery  is 
a  close  or  even  doubtful  one,  resort  may  be  had  to  this 
fact  of  the  writing  to  aid  the  upholding  of  the  gift.^ 

201.  Donor  Reserving  Interest  in  or  Use  of  Ar- 
ticle Given  by  Parol. — There  is  some  conflict  in  the 
cases,  whether  in  a  parol  gift  the  donor  can  reserve  an 
interest  in  the  article  given,  especially  if  the  reservation 
is  for  the  life  of  the  donor,  and  the  retention  of  the  pos- 
session of  it  is  essential  to  its  enjoyment.  Such  a  gift, 
by  some  of  the  cases,  is  void.^  Going  through  the  form 
of  a  delivery  will  not  make  the  gift  valid.^  Thus 
where  a  father  assigned  in  trust  for  his  son  a  certificate  of 
deposit,  reserving  the  right  to  use  the  money  during  his 
life,  but  directing  the  residue  to  be  paid  to  the  son  at  the 
donor's  death,  it  was  held  a  void  gift,  although  the  as- 
signee surrendered  the  certificate  and  took  out  a  new  one 
during  the  life  of  the  assignor.^  But  where  a  father, 
desiring,  during  his  lifetime,  to  distribute  his   j^roperty 

1  Bonn  V.  Markham,  7  Taunt.  224 ;  Young  v.  Young,  80  N.  Y.  422 ;  Montgomery 
V.  Miller,  3  Eedf.  154 ;  Trimmer  v.  Darby,  25  L.  J.  Ch.  424. 

^DevoluDye,  123  Ind.  321. 

3 Cox  r.  Hill,  6  Md.  274,  284;  Anderson  v.  Thompson.  11  Leigh,  439;  Mil- 
ler V.  Anderson,  4  Rich.  Eq.  1 ;  Busby  v.  Byrd,  4  Rich.  Eq.  9 ;  Barker  r.  Barker, 
2  Gratt.  344;  Ragsdale  v.  Norwood,  38  Ala.  21;  Kirkpatrick  v.  Davidson,  2 
Kelly  (Ga.),  297. 

*  Busby  V.  Byrd,  4  Rich.  Eq.  9;  Henderson  v.  Adams,  35  Ala.  723;  Yarbor- 
ough  V.  West,  10  Geo.  471  ;  Booth  v.  Terrell,  16  Geo.  20;  Booth  v.  Terrell,  18 
Geo.  570. 

5 "Withers  v.  Weaver,  10  Pa.  St.  391. 


Delivery.  177 

among  his  cliildren,  reserving  its  use  to  himself,  conveyed 
a  tract  of  land  to  his  son  and  took  back  a  note  for  the 
purchase-money,  payable  to  liis  heirs  four  years  after  his 
decease,  with  interest  payable  to  himself,  but  to  cease  at 
his  death ;  the  note  being  secured  by  a  mortgage  on  the 
laud  with  like  conditions,  it  was  held  that  the  transaction 
constituted  a  valid  gift  inter  vivos  to  the  heirs  of  the  prin- 
cipal sum,  the  interest  of  the  donor  making  it  necessary 
for  him  to  hold  the  notes,  while  he  lived,  for  his  own 
security ;  and  that  the  placing  of  the  mortgage  on  record 
was  all  he  could  do  consistent  with  his  own  rights ;  and 
he  became  a  trustee  for  the  heirs,  and  they  alone  could 
enforce  payment  of  the  principal.^ 

202.  DoxoE,  Reseryin^g  Interest  In  or  Use  of 
Article  Given  by  Deed. — A  reservation  of  an  interest 
in  the  gift  by  the  donor,  where  the  gift  is  evidenced  by 
deed  or  a  written  instrument,  is  a  valid  reservation,  and  does 
not  avoid  the  gift.^  Such  an  instrument  becomes  operative  as 
a  conveyance  in  prcesenti,  so  as  to  vest  the  title  in  the  do- 
nee, although  the  enjoyment  of  the  j)roperty  may  be  post- 
poned until  after  the  death  of  the  donor.^     And  it  has 

^  Love  V.  Francis,  63  Mich.  ISl.  In  this  case  tlie  fatlier  had  gone  so  far  as  to 
secure  a  foreclosure  for  the  interest  and  the  principal,  hut  the  foreclosure  as  to 
the  latter  was  held  to  be  a  nullity  and  not  binding  on  the  heirs.  The  possession 
of  the  life  tenant  is  not  adverse  to  tlie  remainderman :  Banks  v.  Marksberry,  3 
Litt.  275;  Anderson  v.  Dunn,  19  Ark.  650. 

Where  a  mother  gave  her  children  a  slave,  retaining  a  life  interest  therein, 
the  life  interest  was  held  void  and  the  gift  good:  Va?s  v.  Hicks,  3  Murphy,  493. 
A  gift  to  a  trustee  for  the  donee  of  a  sum  of  money,  reserving  the  interest  for  life 
of  the  donor,  is  a  valid  gift  of  the  principal  at  the  donor's  death:  Reed  r.  Bar- 
num,  136  111.  388. 

^Thompson  v.  Wornack,  9  La.  Ann.  5">5 ;  Summerlin  v.  Gibson,  15  Aln.  406. 

^Summerlin  v.  Gibson,  15  Ala.  406;  Adams  v.  Bronghton,  13  Ala.  731  ;  Wilks 
V.  Greer,  14  Ala.  437  ;  Caines  v.  Marley,  2  Yerg.  582  ;  Bolin  v.  ITeadley,  7  H.  &  J. 
257;  Thompson  v.  Womack,  9  La.  Ann.  555;  Banks  r.  Marksherry,  3  Litt.  275. 
In  Mississippi  such  a  gift  was  held  void,  because  there  was  no  actual  delivery  of 
the  slaves  given,  and  the  writing  did  not  dispense  with  a  delivery:  Thompson  v. 
Thompson,  2  How.  737  ;  Horn  v.  Gartmnn,  1  Fla.  G3. 


178  Gifts. 

been  held  that,  although  the  deed  is  absolute  on  its  face, 
the  reservation  may  be  shown  by  parol.^ 

203.  Reservatiox  of  Eight  to  Use  Part  of  Fund 
Given. — If  the  donor  reserves  the  right  to  use  a  part  of 
the  fund  given,  without  designating  how  much  or  what 
part  of  it,  or  to  use  the  whole  of  it  if  he  need  so  much 
for  his  personal  comfort  or  business,  then  the  gift  is  in- 
complete, because  the  donor  has  not  relinquished  his  do- 
minion over  the  fund  given.  So  the  same  would  be  if 
several  articles  were  given,  and  the  right  reserved  to  take 
a  part  or  all  of  them ;  or  even  of  a  single  article."^  But 
where  A  signed  a  memorandum,  in  which  he  particularized 
some  Kussian  bonds,  and  to  whom  he  would  give  them, 
and  at  the  same  time  delivered  them  to  B,  verbally  direct- 
ing him  that  he  was  to  pay  him.  A,  the  interest  for  life, 
and  hold  the  bonds  for  the  persons  named  in  the  paper 
after  his  death,  it  was  held  that  there  was  a  valid  gift  to 
the  persons  named  in  the  memorandum.^ 

204.  Gift  of  Boxds  with  Beservation  of  the 
Accruing  Annual  Interest — Trust. — The  owner  of 
certain  coupon  bonds  placed  them  in  two  envelopes,  and 
indorsed  upon  each  envelope  a  memorandum,  signed  by 
him,  to  the  effect  that  a  specified  number  of  the  bonds 
therein  belonged  to  his  son  W.,  and  the  remainder  to  his 
son  J.,  but  that  the  interest  to  become  due  thereon  was 
"  owned  and  reserved  "  by  him  during  his  life,  and  that 
at  his  death  "  they  belong  absolutely  and  entirely  to  them 
and  their  heirs."  He  exhibited  the  packages,  with  the 
indorsements,  to  the  wives  of  the  two  sons,  and  said  that 

'Summerlin  v.  Gibson,  15  Ala.  406. 

2  Daniel  v  Smith,  75  Cal.  548  ;  S.  C.  64  Cal.  346  ;  Basket  v.  Hassell,  107  U.  S. 
602.  Interest  of  a  mortgage  forgiven  :  Scales  v.  Maude,  6  De  M.  &  G.  43 ;  S.  C. 
25  L.  J.  Ch.  433 ;  1  .lur.  N.  S.  1147. 

3  Langley  v.  Thomas,  26  L.  J.  Ch.  609. 


Delivery.  179 

what  he  had  thus  done  was  in  pursuance  of  a  settled  j)ur- 
pose,  and  that  he  believed  he  had  made  a  valid  disposition 
of  the  bonds.  At  that  time  he  lived  at  W.'s  house,  where 
there  was  a  safe  formerly  owned  by  him,  but  which  he  had 
given  to  a  son  of  W.,  reserving  the  right  to  use  it ;  and 
which  he  did  use  as  a  deposit  for  his  valuable  papers,  but 
rarely  going  to  it,  being  in  the  habit  of  depositing  and  re- 
moving the  papers  when  W.  requested  it.  After  exhibit- 
ing the  packages  he  placed  them  in  the  safe.  After  this 
the  packages  were  generally  kept,  not  in  the  pigeon  holes 
used  by  him,  where  the  bonds  had  been  |)reviously  kept, 
but  in  the  compartment  in  the  safe  where  the  papers  of  W. 
were  kept,  and  there  they  were  found  after  the  death  of  the 
donor,  which  occurred  eighteen  months  after  he  declared 
that  he  made  a  gift  of  the  bonds.  As  installments  of  interest 
became  due  he  cut  off  the  coupons,  W.  sometimes  assisting 
him.  W.  never  exercised  any  ownership  over  the  bonds 
as  against  his  father,  and  they  were  at  all  times  under  the 
control  of  the  latter,  up  to  his  death.  J.,  the  other  donee, 
never  had  any  control  over  the  bonds,  nor  access  to  the 
safe.  At  one  time  the  father,  when  solicited  for  a  loan, 
said  he  supposed  he  might,  with  his  sons'  consent,  take 
some  of  their  bonds  ;  and  he  told  another  person  that  what 
he  had  left  he  had  given  to  W.  and  J.  The  donor  had, 
before  making  the  indorsements,  given  J.  $1,000,  and  he 
afterward  took  a  $1,000  bond  from  one  of  the  packages, 
which  was  stated  in  the  indorsement  as  belonging  to  J., 
and  gave  it  to  a  third  person.  It  was  decided  that  these 
facts  did  not  show  a  valid  executed  gift,  for  the  reason 
that  the  donees  at  no  time  during  the  life  of  the  donor 
had  exclusive  possession  of  the  bonds,  or  the  legal  right 
to  such  possession  ;  nor  could  the  gift  be  upheld  as  a  trust.^ 

^  Young  V.  Youn<r,  80  X.  Y.  422 ;  S.  C.  36  Am.  Rep.  634 ;  previous  decision,  5 
N.  Y.  Wkly.  Dig.  109. 


180  Gifts. 

But  where  there  was  no  reservation  of  interest,  under  facts 
very  similar,  the  same  court  upheld  the  gift.^ 

205.  Gift  of  Note  with  Reservation  of  Accruing 
Interest. — If  the  owner  of  a  note  give  it  to  a  third  per- 
son upon  the  understanding  that  the  donor  shall  receive 
annually  the  interest  which  accrues  upon  it  during  his 
life,  and  at  his  death  the  proceeds  of  the  note  is  to  be  di- 
vided among  certain  designated  persons,  the  gift  is  good 
if  the  donor  die  without  having  revoked  it.  "  We  think," 
said  the  court,  "  therefore,  that  the  trial  court  did  not  err 
in  holding  such  disposition  as  is  here  shown  of  the  note  in 
question  a  valid  gift  inter  vivos.  But,  even  if  that  were 
not  so,  upon  the  facts  here  presented,  and  the  law,  as  we 
understand  it  to  be,  we  would  be  inclined  to  hold  that  it 
Avould  constitute  a  good  gift  mortis  causa  of  the  notes  in 
question." "  In  the  case  cited  there  was  a  delivery  of  the 
instrument  evidencing  the  debt.     There  is  no  doubt  that 

^  Trow  V.  Shannon,  78  N.  Y.  446,  affirming  8  Da'y,  239.  A  payee  of  three 
promissory  notes  executed  the  following  indorsement,  preceded  by  the  delivery  of 
them  to  the  indorsee  :  "  I  bequeath — pay  the  within  contents  to  A,  or  liis  order, 
at  my  death."'  There  was  a  single  witnes-i  to  his  signature.  In  the  act  of  the  de- 
livery of  tlie  notes  the  payee  expressed  an  intention  to  be  "master  of  them  as 
long  as  lie  lived."  It  was  held  that  tiie  gift,  because  of  the  reservation,  was  void 
as  an  inter  vlvos^,  and  also  as  a  testamentary  gift,  because  there  was  only  one  wit- 
ness: Mitcliell  V.  Smith,  33  L.  J.  Ch.  596 ;  12  W.  E.  941  ;  10  L.  T.  N.  S.  801  ;  4 
De  G.,  J.  &  .S.  422. 

^Seavey  v.  Seavey,  30  111.  App.  625;  Doty  v.  Willson,  47  N.  Y.  580;  Stone  v. 
Hackett,  12  Gray,  227  (stocks  with  income  reserved  for  life)  ;  Martin  v.  Funk,  75 
N.  Y.  134  (deposit  in  bank  and  accruing  interest  used  by  donor)  ;  Miner  v.  Rogers, 
40  Conn.  512  (deposit  in  bank  and  interest  used  by  donor)  ;  Gerrish  v.  New 
Bedford  Inst.,  128  Mass.  159  (deposit  in  savings  bank  and  dividends  used  by 
donor)  ;  Smith  v.  Ossipee  Valley,  etc.,  Bank,  64  N.  H.  228  ;  S.  C.  9  Atl.  Rep.  792 
(deposit  in  bink  with  express  reservations  of  accruing  dividends)  ;  Eastman  v. 
"VVoronoco  Savings  Bank,  136  ^las?.  2^8  (deposit  in  bnnk  with  reservation  of  in- 
terest) ;  Lines  v.  Lines,  142  Pa.  St.  149  (gift  by  deed).  A  gift  of  a  bond  to  a 
trustee  witli  directions  to  pay  the  interest  accruing  thereon  to  a  certain  person, 
without  limitation  as  to  the  duration  of  the  trust,  is,  upon  the  donor's  death, 
equivalent  to  a  gift  to  such  person  of  the  principal  :  Reed  v.  Barnum,  36  111.  App. 
525.     This  case,  however,  was  reversed  :   136  111. 


Delivery.  181 

a  delivery  to  the  donee  and  a  redelivery  to  the  donor  for 
the  purpose  of  collecting  the  interest  would  be  a  sufficient 
delivery  to  make  the  gift  valid.  But  suppose  there  was 
no  delivery,  would  the  gift  be  valid  ?  If  the  gift  was 
evidenced  by  writing,  there  is  no  doubt  of  its  validity. 
Perhaps,  if  the  words  of  the  gift  are  clear,  especially  if 
evidenced  by  indorsement  on  the  instrument  given,  no 
further  delivery  is  required ;  just  as  the  indorsement  of 
a  credit  on  a  note  or  a  part  payment  is  sufficient  to  make 
the  gift  valid,  without  an  actual  delivery  of  the  note 
itself;  for  the  donor  has  a  right  to  retain  the  note  for  his 
own  security.^ 

206.  Gift  to  Be  Eeturxed  if  Doxor  Make  Demand 
FOR  It  in  His  Lifetijie. — Where  a  donor  executed  and 
delivered  a  note  to  the  donee  as  a  gift,  sealed  up  in  an 
envelope  which  was  not  to  be  opened  until  after  his  death, 
and  which  was  to  be  returned  to  him  if  he  requested  it 
during  his  lifetime,  and  no  such  request  was  made,  it  was 
held  that  the  gift  was  valid.^  In  this  instance  the  note 
was  executed  by  the  donor,  and  there  was  a  consideration 
for  it ;  but  if  the  note  had  been  the  note  of  a  third  person 
the  same  result  would  have  been  reached.^ 

^  Green  V.  Langdon,  28  Mich.  221;  Francis  n  Love,  63  Mich.  181.  But  see 
Section  154  as  to  gift  a  part  of  a  chattel. 

Where  the  gift  was  evidenced  by  a  written  instrument,  and  consisted  of  a  trnns- 
fer  to  the  donee  of  a  mortgage,  but  the  interest  on  the  mortgage  and  the  money 
thereby  secured  were  to  belong  to  the  assignor  during  his  lifetime,  the  gift  was 
held  invalid,  tiiough  the  written  instrument  and  the  mortgage,  but  not  the  bond 
secured,  were  delivered  to  the  donee  :  Inre  Wirt,  5  Dem.  (N.  Y.)  179. 

2  Worth  V.  Case,  42  N.  Y.  362. 

^  In  another  case  from  the  same  State,  it  is  said  that  the  donor  must  be  "  in  no 
condition  to  repossess  himself  of  the  subject-matter  of  the  gift  or  to  recall  the 
same:"  Little  v.  Willets,  o-")  Barb.  125.  It  must  be  admitted  that  the  case  is  on 
tlie  border  line.  Three  judges  dissented.  In  another  case  it  was  said  that 
"a  total  exclu'^ion  of  the  power  or  means  of  resuming  possession  by  the  donor  is 
not  necessary"  (Cooper  v.  Burr,  45  Barb.  9) ;  but  this  language  does  not  refer  to  a 
resuming  of  the  title  to  the  thing  given— not  to  a  resumption  of  dominion  over 
the  article. 


182  aifts. 

207.  Hire  of  Slave,  Axijial,  or  Chattel. — The 
owner  of  a  slave  or  animal  may  make  a  gift  of  the  use  or 
liire  of  such  slave  or  animal  for  any  period  of  time,  by 
delivering  it  to  the  donee  or  by  delivering  it  to  the  person 
hiring  it,  and  such  a  gift  is  not  revocable.  Of  course  the 
same  is  true  of  any  chattel.  In  such  an  instance  the 
donee  may  bring  an  action  against  the  person  hiring 
them  for  their  hire.^ 

208.  Parol  Gift  to  Donee  for  Life,  with  Eemain- 
der  Over  to  Third  Person. — A  gift  of  a  chattel  to  A 
for  life,  by  parol,  with  remainder  over  to  B,  is  void  as  to 
the  remainder,  but  the  absolute  j^roperty  vests  in  A  and 
does  not  revert  on  his  death  to  the  donor.^  Such  a  re- 
mainder, however,  may  be  created  by  deed  or  a  writing."^ 

209.  Repossession  by  or  Delivery  to  Donor. — If  a 
gift  inter  vivos  has  been  completed,  the  donor  cannot  de- 
feat it  by  regaining  the  jDossession  of  the  thing  given. 
Thus  a  mother  sold  her  real  estate  and  caused  two  of  the 
purchase-money  notes  to  be  made  payable  to  her  three- 

'  Pore  V.  Randolph,  13  Ala.  214. 

^ Adams  v.  McMichael,  37  Ala,  432;  Betty?;.  Moore,  1  Dana,  235;  Powell  v. 
Brown,  1  Bail.  L.  100;  Martin  i'.  Martin, '15  La.  Ann.  585;  Harris  v.  McLaran, 
30  Miss.  533;  Booth  v.  Terrell,  16  Geo.  20;  S.  C.  18  Geo.  570;  26  Geo.  447; 
Fitzhugh  V.  Anderson,  2  Hen.  &  M.  289 ;  Gordon  v.  Green,  10  Geo.  534 ;  Kirkpat- 
rick  V.  Davidson,  2  Kellv  (Ga.j,  297  ;  Johnson  v.  Waters,  111  U.  S.  640;  Maxwell 
t.  Harrison,  8  Geo.  Gl  ;  Pnvne  v.  Lassiter,  10  Yerg.  507;  Williams  r.  Conrad, 
11  Humph.  411;  Hallum  r.  Yourie,  1  Sneed,  368;  Price  v.  Price,  5  Ala.  578; 
Vanghn  v.  Guy,  17   Mo.  429  (even    by  deed  void);    Dougherty  v.   Douglierty, 

2  Strob.  Eq.  63.  Contra,  Brummet  r.  Barber,  2  Hill  (S.  C),  543;  Pemberton  v. 
Pemberton,  22  Mo.  338  ;  Halbert  v.  Halbert,  21  Mo.  277  ;  Thompson  v.  Wormack, 
9  La.  .'knn.  555. 

'Kirkpatrick  v.  Davidson,  supra;  Co.x  v.  Hill,  6  Md.  274,  286;  Harris  r. 
McLaran,  30  Miss.,  p.  568;   Hayden  i-  Stinson,  24  Mo.  182;  Bradley  v.  Mosley, 

3  Call.  50;  Pillot  v.  Landon,  46  N.  J.  Eq.  310;  London  ?■.  Turner,  11  Leigh,  403  ; 
Andree  v.  Word,  1  Rus<.  260;  Greene  v.  Ward,  1  Rnss.  262;  S.  C.  4  L.  J.  Ch.  99; 
Higinbotham  ?■.  Rucker,  2  Call.  313;  Brown  v.  Kelsey,  2  Cush.  243;  Keene  v. 
I\Iacey,  3  Bibb.  39  ;  Wright  v.  Cartwright,  1  Burr,  282. 


Delivery.  183 

year-old  son,  and  delivered  them  to  liis  father  for  safe 
keeping.  The  father  died,  and  the  mother  as  executrix 
of  his  estate  came  into  possession  of  the  notes.  She  j^ur- 
chased  of  the  maker  of  these  two  notes  a  tract  of  land, 
and  in  part  payment  cancelled  and  surrendered  them. 
It  was  held  that  the  repossession  of  the  notes  did  not  re- 
voke the  gift,  that  the  lands  in  her  possession  Avere  charge- 
able with  a  trust  to  the  extent  of  the  amount  of  the  gift ; 
and  that  she  could  not  defend  on  the  ground  that  the 
land  she  had  sold,  and  for  the  purpose  of  which  the  two 
notes  were  given,  was  held  by  her  as  a  trustee.^  In  the 
case  of  a  gift  to  an  infant  child,  the  latter  cannot  so  rede- 
liver the  subject  of  the  gift  to  the  donor  as  to  divest  him- 
self of  the  title  conferred  in  perfecting  the  gift ;  nor  can 
the  person  to  whom  it  was  delivered  for  the  infant  consent 
that  the  donor  may  resume  the  article  given,  so  as  to  de- 
prive the  donee  of  the  benefit  of  the  gift.^  So  where  a 
father  executed  to  his  married  dauo-hter  a  deed  for  a 
slave,  but  never  delivered  it,  saying,  however,  that  it  was 
his  deed  and  that  the  slave  belonged  to  her,  sent  the 
slave  to  her,  and  her  husband  declined,  without  her 
knowledge  of  the  gift,  to  receive  it,  because  he  thought  it 
was  her  separate  property,  though  the  deed  did  not  make 
it  such,  returned  the  slave  to  the  father  with  a  note, 
which  the  father  thought  came  from  the  daughter,  re- 
questing that  he  would  do  the  best  he  could  for  her;  and 
the  father,  on  the  slave's  return,  announced  that  he  wouhl 
put  it  to  work  and  account  to  the  daughter  for  it ;  this 
was  held  to  show  a  valid  delivery,  and  a  retention  of  the 
])OSsession  not  inconsistent  with  the  validity  of  the  gift. 
While  the  court  did  not  pass  upon  the  sufficiency  of  tlie 
delivery  of  the  deed,  yet  it  remarked   that  the  father's 

1  Kinker  v.  Kinker,  20  Ind.  185. 

-  Easley  v.  Dye,  14  Ala.  158  ;  Sewall  v.  Glid.lcn,  1  Ala.  52. 


1S4  Gifts. 

"  continued  possession  of  the  deed  is  not  necessarily  incon- 
sistent witli  the  idea  of  a  delivery  in  fact  or  in  law."  ^  So 
where  the  donee  of  an  unindorsed  note,  on  its  delivery  to 
him  by  the  donor,  handed  it  back,  with  a  request  that  he 
keep  it  until  called  for,  or  collect  it  and  pay  the  proceeds 
over  ;  this  was  held  not  to  invalidate  the  gift,  and  that 
the  donee  could  maintain  an  action  on  the  note  after  the 
donor's  death.^  Nor  is  the  gift  annuled  if  the  note  is  re- 
delivered to  the  donor,  with  an  agreement  that  he  may 
collect  and  use  so  much  of  the  proceeds  as  he  needs  for 
his  support  in  case  he  should  become  poor.^ 

1  Mims  V.  Sturtevant,  18  Ala.  359. 

^  Grover  v.  Grover,  24  Pick.  2G1.  Ev  a  redelivery,  especially  if  accompanied 
by  evidence  tending  to  show  it,  the  jury  may  infer  a  rescinding  of  the  gift: 
Sanderlin  v.  Sanderlin,  24  Ga.  583. 

^Marston  v.  Marston,  64  N.  H.  146;  Watson  v.  Bradshaw,  6  Ontario  App. 
666.  Where  it  was  held  that  an  indorsement  of  a  note  by  the  payee  was  essen- 
tial to  pass  the  title,  it  was  said  that  an  allegation  of  the  donee  that  the  donor 
"give  her  said  note,  but  retained  it  in  her  possession  as  her  agent  to  collect  the 
interest  thereon  for  her,"  did  not  show  a  delivery :  Hitch  v.  Davis,  3  Md.  Ch. 
266.  Even  as  against  creditors  with  notice  the  gift  will  be  sustained  when  the 
donor  comes  into  its  repossession :  Madden  v.  Day,  1  Bail.  L.  (S.  C.)  587.  When 
the  donor  resided  in  tlie  family,  a  reservation  to  ride  whenever  he  desired  the 
horse  he  gave,  was  held  not  to  avoid  the  gift :  Bennett  v.  Cook,  28  S.  C.  353.  So 
in  the  case  of  a  gift  of  a  slave,  a  reservation  of  a  right  to  "  borrow  "  under  cer- 
tain circumstances,  or  to  receive  "  something  like  hire,"  if  the  donor  should  stand 
in  need,  it  was  held  to  be  a  condition  subsequent,  and  did  not  invalidate  the  gift : 
M'Kane  v.  Bonner,  1  Bail.  L.  (S.  C.)  113;  Taber  v.  Willets,  44  Hun,  346.  A 
father  took  out  a  policy  of  insurance  in  his  ov?n  favor  on  the  life  of  his  minor 
son  to  v,'liom  he  promised  to  give  the  policy  at  his  majority.  The  son  having 
married  asked  that  it  be  given  him  before  that  time  and  made  payable  to  his 
wife,  and  the  father,  acquiescing,  delivered  it  to  hiiu.  He  afterward  returned  it 
to  his  father  in  order  that  he  might  have  it  changed  so  as  to  run  to  the  wife,  and 
he  forwarded  it  through  tlie  local  agent,  with  the  request  that  it  be  changed  ac- 
cordingly. The  company  substituted  a  policy  drawn  in  the  wife's  favor  and  sent 
it  to  the  local  agent  who  received  it  on  or  about  the  day  the  son  died  and  after- 
ward delivered  it  to  the  father,  who  retained  it,  claiming  the  proceeds  of  the 
policy.  It  was  held  that  the  gift  of  insurance  was  perfected  by  tlie  delivery  of 
policy,  the  order  for  substitution  and  the  subsequent  transfer  by  the  company 
without  objection,  and  that  a  bill  to  enjoin  the  company  from  paying  it  to  the 
wife  would  not  lie  :  Crittenden  n  Phoenix  Mutual  Life  Ins.  Co.,  41  Mich.  442  ; 
In  re  Malone,  37  Leg.  Int.  Qo  ;  S.  C.  38  Leg.  Int.  303.    In  Little  v.  Willets,  55 


Delivery.  185 

210.  Donee  Has  Burden  to  Show  that  Redelivery 
WAS  Not  a  Rescission  of  the  Gift. — The  burden  is 
always  iijjon  the  donee  to  shov/  that  there  was  a  valid  gift. 
If  a  gift  is  once  shown,  then  the  donor,  if  he  so  desires, 
has  the  burden  to  show  that  there  was  a  rescission.  But 
if  the  article  has  been  voluntarily  redelivered  to  the  donor 
by  the  donee,  or  even  if  the  donor  is  found  in  possession 
without  it  being  shown  how  he  came  into  the  possession, 
then  the  burden  is  cast  upon  the  donee  to  show  that  there 
was  not  a  rescission  of  the  gift,  and  that  it  is  yet  valid 
and  effective.^ 

211.  Redelivery  or  Repossession  of  Donatio  Mor- 
tis Causa. — There  are  many  expressions  contained  in  the 
reported  cases  concerning  instances  of  gifts  7nortis  causa, 
that  not  only  must  there  be  a  delivery — such  a  transac- 
tion as  the  law  recognizes  as  a  delivery — but  "'  there  must 
be  a  continuing  possession  "  until  the  donor's  death."  The 
Supreme  Court  of  Maine  said,  speaking  of  the  delivery 
in  a  gift  mortis  causa :  "  It  not  only  requires  the  de- 
livery to  be  actual  and  complete,  such  as  dej^rives  the 
donor  of  all  further  control  and  dominion,  but  it  requires 

Barb.  12o,  it  was  held  that  a  gift  of  money  from  a  hushand  to  his  wife,  which 
she  immediately  returns  to  him  with  instructions  to  use  it  as  her  agent,  cannot 
be  sustained  as  against  the  husband's  creditors  :  Love  v.  Francis,  63  Mich.  ISl ; 
retention  by  father  of  a  gift  to  son,  the  father  reserving  a  life  interest  of  the  in- 
come.    See  generally  Hill  v.  Chapman,  2  Brown  Ch.  612,  and  Section  122. 

^  We  can  cite  no  case  exactly  in  point ;  but  we  believe  that  the  practice  shown 
by  the  reported  cases  bears  out  this  assertion.  Of  course,  in  showing  his  pos- 
session, the  donor  will  often  aid  the  donee  by  explaining  how  and  under  what 
circumstances  he  came  into  possession.  See  Taber  v.  Willets,  44  Hun,  316  ; 
M'Kane  v.  Bonner,  1  Bail.  L.  (S.  C.)  113  ;  Ivey  v.  Owens,  28  Ala.  641.  In  Louis- 
iana, in  1874,  all  giftsbetween  husband  and  wife  were  revokable,  and  the  restora- 
tion by  her  to  him  of  the  property  given,  followed  by  a  subsequent  conversion 
by  bim,  was  held  to  show  a  rescission  of  the  gift :  Succession  of  Hale,  26  La.  Ann. 
195. 

2  Huntington  v.  Gil  more,  14  Barb.  243.  But  see  Hill  r.  Chapman,  2  Brown 
Ch.  612. 


186  Gifts. 

the  donee  to  take  and  retain  possession  till  the  donor's 
death.  Although  the  delivery  may  have  been  at  one 
time  complete,  yet  this  will  not  be  sufficient,  unless  the 
possession  be  constantly  maintained  by  the  donee.  If 
the  donor  again  has  possession,  the  gift  becomes  nuga- 
tory. And  public  j)olicy  requires  these  rules  to  be  en- 
forced with  great  stringency,  otherwise  the  wholesome 
safeguards  of  our  testamentary  laws  become  useless.  It 
is  far  better  that  occasionally  a  gift  of  this  kind  fail  than 
that  the  rules  of  law  be  so  relaxed  as  to  encourage  fraud 
and  j^erjury."^ 

212.  Donee  of  Imperfect  Gift  May  Maintain  an 
Action  Against  a  Wrong-Doer. — It  is  not  necessary 
that  a  donee  should  have  a  valid  title,  j)erfected  by  delivery, 
to  the  article  attempted  to  be  given,  in  order  to  maintain 
an  action  against  one  wrongfully  depriving  him  of  its  pos- 
session. Mere  right  of  possession  is  sufficient  to  enable  him 
to  maintain  the  action ;  he  has  such  a  special  proj)erty  as 
to  be  able  to  maintain  an  action  against  a  mere  wrong- 
doer, though  the  donor  may  resume  the  thing  given.^ 

213.  Proof  of  Delivery. — Delivery  may  be  proved, 
like  proof  of  any  other  fact,  inferentially  ;  direct  testimony 
is  not  essential.  The  acts  and  conduct  of  the  parties  may 
be  sufficient  to  clearly  show  a  delivery.^ 

214.  Question  for  Jury. — If  the  facts  of  the  transac- 
tion are  clearly  proved  and  uncontradicted,  and  the  infer- 

^  Hatch  V.  Atkinson,  56  Me.  324;  Dunbar  v.  Dunbar,  80  Me.  152.  In  Vermont 
it  was  lield  a  note,  tlie  separate  property  of  herself,  could  be  the  subject  of  a 
valid  gift  mortis  causa  by  a  wife  to  her  husband,  even  though  he  does  not  reduce 
tliena  to  possession  during  her  life,  the  delivery  of  them  to  him  by  her  for  such 
purpose  vesting  in  him  a  good  legal  title :  Caldwell  v.  Renfrew,  33  Vt.  213;  Scot 
V.  Reed.  25  Atl.  Rep.  604. 

2  2  Williams  Sanders  217  ft,  noted.  See  Phillips  v.  McGrew,  13  Ala.  2-55;  Rourne 
f.  Fo.sbrooke,  18  C.  B.  (N.  S.)  515  ;  S.  C.  34  L.  J.  C.  P.  164;  11  Jur.  N.  S.  202. 

3  Isaac  V.  Williams,  3  Gill.  278. 


Delivery.  187 

ence  to  be  drawn  from  them  also  lead  to  a  certain  and 
uncontroverted  conclusion,  or,  in  other  words,  if  only  one 
inference  or  set  of  inferences  can  be  drawn  from  the  facts 
proved,  then  the  question  whether  there  was  a  gift  is  one 
for  the  court ;  but  if  the  facts  are  disputed,  either  as  to  the 
alleged  donor's  intention  to  give,  or  his  alleged  attempt  to 
make  a  delivery ;  or  if  the  transmission  of  the  possession 
from  the  donor  to  the  donee  is  ambiguous,  then  it  is  a 
question  for  the  jury,  under  the  instructions  of  the  court, 
whether  there  was  an  intent  to  give  and  whether  there  was 
such  a  transaction  as  amounted  to  a  delivery.^ 

^  Hansell  v.  Bryan,  19  Geo.  167.  "And  in  every  instance  there  was  the  repeated 
<lecIarations  of  the  plaintiff's  father,  that  he  had  given ;  so  that  the  jury  were 
authorized  to  infer  from  them  everything  that  w.is  necessary  to  the  consummation 
of  a  legal  gift,  including  necessarily  the  intention  to  give,  the  act  of  giving,  the 
delivery,  and  the  consent  to  accept :"  Reid  v.  Colcock,  1  N.  &  McC.  592 ;  Gran- 
giac  V.  Arden,  10  Johns.  293  ;  Carradine  v.  Collins,  7  S.  &  M.  428 ;  Caldwell  v. 
Wilson.  2  Speer  L.  75 ;  Nichols  v.  Edwards,  16  Pick.  62  ;  Hunt  v.  Hunt,  119  Mass. 
474;  Young  v.  Power,  41  Miss.  197.  If  the  facts  are  undisputed,  the  court  must 
direct  the  verdict :  Oldenberg  v.  Miller,  82  Mich.  650 ;  Porter  v.  Gardner,  60 
Hun,  571. 


CHAPTER  X. 

ESTABLISHMENT  OF  GIFT. 


215. 

216. 
217. 
218. 
219. 
220. 
221. 
222. 
223. 
224. 

225. 


226. 


227. 

22S. 
229. 
2}0. 
231. 

232. 
233 
234. 
235. 
236. 
237. 

238. 
239. 

240. 
241, 
242. 

243. 


Lex  Loci  Determines  Validity  of 

Gift. 
Bunlen  to  Show  Gift  is  on  Donee.     244. 
Essentially  a  Matter  of  Evidence.     245. 
Words  of  Gift. 

Particularity  of  Proof.  246. 

Sufficiency  of  Evidence. 
Number  of  Witnesses.  247. 

Prior  Declarations  of  Donor.  248. 

Declarations  at  Time  of  Gift. 
Declarations  Made  Subsequent  to     249. 

the  Time  of  the  Alleged  Gift. 
Subsequent     Declarations    when 

Transaction   is  Doubtful    or     250. 

Donee  in  Possession. 
Declarations   of  Drunken    Donor 

Attempting   to    Regain    Posses-     251, 

sion. 
Inoperative  Deed  to  Show  Decla-     252. 

rations  of  a  Gift. 
References  in  Will  to  Gift.  253. 

Declarations  of  Donee. 
Declarations  to  Prior  Gift.  254. 

Declarations  Insufficient  to  Estab- 
lish Gift.  255. 
Declarations  as  to  Other  Gifts.  256. 
Neigliborhood  Reports. 
Intent  of  Donor.  257. 
Circumstances  Attending  Gift.  258. 
Proof  of  Gift  from  Circumstances.  2-")9. 
Value  of    Gift    and    Property   of     260. 

Donor — Affe  of  Donor.  261. 

Affection  of  Donor  for  Donee. 
Illicit    Relations    of    Donor    and     262. 

Donee. 
Relationship  of  Donor  and  Donee. 
Wife  to  Husband.  263. 

Presumption  of  Gift   by  Wife  to     264. 

Her  Husband.  265. 

Gift   bv  Wife  to  Husband  of  the     266. 

188 


Rents  and  Profits  of  her  Sepa- 
rate Estate. 

Gift  by  Husband  to  Wife. 

Purchase  of  Land  by  Husband  but 
Conveyance  to  Wife. 

Presumption  of  Gift  by  Husband 
to  Wife. 

Parent's  Gift  to  His  Child. 

Gift  by  Parent  to  Child  when 
Married. 

Comments  Upon  Presumption 
Arising  from  Delivery  of  Prop- 
erty by  a  Parent  to  His  Child. 

Presumption  Arising  from  Parent 
Advancing  Money  to  His  Child 
— Loan. 

Presumption  of  Gift  Arising  from 
Proof  of  Possession. 

Donee's  Access  to  Donor's  Papers 
and  Securities — Possession. 

Presumption  thut  Gift  was  a  Pay- 
ment of  a  Debt. 

Evidence  of  Acceptance  —  Pre- 
sumption. 

Sanity  of  Donor. 

Equity  will  not  Aid  an  Imperfect 
Gift — Specific  Performance. 

Defendant  May  Show  Gift  Invalid. 

Statute  of  Limitations. 

Gift  to  a  Class — to  whom  as  Donee. 

Denying  Donor's  Title. 

Administrator  or  Executor  not 
Entitled  to  tlie  Possession. 

Validity  of  Gift  when  Creditors 
not  Concerned  —  Gift  Between 
Kin. 

When  Title  Passes. 

Competency  of  Donee  as  a  Witness. 

Pleading. 

Question  for  Jury. 


Establishment  of  Gift.  189 

215.  Lex   Loci   Determines  Validity  of   Gift. — 

The  validity  of  a  gift,  like  a  contract,  is  to  be  determined 
by  the  law  of  the  place  where  it  was  made,  without  refer- 
ence to  the  domicile  of  either  the  donor  or  donee.  If 
valid  at  the  place  where  made,  it  will  be  enforced  in  a 
jurisdiction  in  which,  if  it  had  there  been  made,  it  would 
have  been  invalid,  on  proof  of  the  law  of  the  place  where 
made.^ 

216.  Burden  to  Show  Gift  is  on  Donee. — If  it  is 
claimed  that  a  transaction  amounts  to  a  gift,  the  burden 
is  uj^on  the  donee,  or  the  one  claiming  title  to  the  property 
or  a  right  thereunto,  to  show  to  the  satisfaction  of  the 
court  or  jury  that  the  transaction  was  in  fact  a  gift. 
When  his  right  to  the  property  is  challenged  by  the  donor 
or  his  personal  representatives,  and  title  is  shown  to  have 
once  been  in  the  donor,  and  the  circumstances  attending 
this  proof  does  not  incidentally  overturn  the  proof  of 
ownership  in  him,  then  the  donee  must,  by  pleading  and 
evidence,  overcome  the  prima  facie  title  of  the  donor,  and 
show  a  transaction  which  gives  him  title  by  gift.^ 
The  donee  has  the  burden  to  show  everything  essential  to 
the  validity  of  the  gift.^  But  after  the  donee  has  made  a 
prima  facie  case  of  a  gift,  the  party  denying  the  validity 
of  the  claim  may  rebut  the  case  thus  made ;  but,  in  foct, 
the  transaction  may  be  such  as  to  entail  upon  him  the 
burden  of  disproving  the  donee's  claim  all  through  the 

1  See  Section  13  ;  Emory  v.  Cloiigh,  63  N.  H.  552  ;  Dow  r.  Gould,  31  Cal.  629, 652  ; 
Whitesides  v.  Poole,  9  Rich.  L.  68 ;  Owen  r.  Tankersley,  12  Tex.  405. 

2  Doty  V.  Willson,  47  N.  Y.  580 ;  Alsop  v.  Sanlhold  Snvings  Bank,  21  N.  Y.  Sup. 
300;  Trowbridge  v.  Holden,  58  Me.  117;  Wheeler  v.  Ghiscow,  11  So.  Rep.  758; 
Perley  v.  Perley,  144  Mass.  104 ;  Bernum  v.  Reed,  136  111.  388  ;  Edwards  v.  Jones, 
7  Sim.  325 ;  affirmed  1  Myl.  &  Craig,  226 ;  Vinden  v.  Eraser,  28  Gr.  (Can.)  502 ; 
O'Doherty  v.  Ontario  Bank,  32  C.  P.  (Can.)  285 ;  Huston  v.  Markley,  49  la.  162; 
Samson  r.  Samson,  67  Ta.  253;  Scott  v.  Keed,  25  Atl.  Rep.  604. 

'  Edwards  v.  Jones,  supra. 


190  Gifts. 

case.  Thus  in  an  action  on  a  note,  j)ayable  to  the  plain- 
tiff and  signed  by  the  defendant,  the  latter  gave  evidence 
tending  to  show  that  he  received  the  amount  for  which 
the  note  was  given  as  a  gift  from  his  father,  of  whose  es- 
tate the  plaintiff  was  administrator,  and  that  the  note  was 
given  as  a  memorandum  to  show  payment,  and  was  to  be 
enforced  only  in  the  event  that  the  plaintiff  was  called 
uj^on  to  account  for  the  amount,  if  needed,  for  the  pay- 
ment of  debts.  The  plaintiff's  evidence  tended  to  show 
that  he  lent  the  money  to  the  defendant  out  of  money 
which  had  been  given  to  the  former  by  his  father,  with 
which  to  pay  certain  debts,  retaining  the  remainder  to  his 
own  use.  It  was  held  that  the  burden  was  upon  the  j^lain- 
tiff  throuo-hout  to  show  a  consideration  for  the  note.^ 

217.  Essentially  a  Matter  of  Evidence. — What 
constitutes  a  gift — what  combination  of  circumstances  will 
bring  a  case  within  the  legal  definition  of  a  gift — is  essen- 
tially a  matter  of  evidence  and  not  of  law ;  and  each  par- 
ticular case  must  depend  upon  its  own  circumstances,  and 
must  be  such  as  to  authorize  the  belief  that  a  gift  was 
intended.  The  acts  of  the  parties  must  be  judged  by 
their  nature  and  circumstances,  by  the  usages  of  the 
community,  by  those  innumerable  considerations  which 
no  law  can  define ;  "  and  from  all  these  sources  conclu- 
sions should  be  drawn  conformably  to  the  common  sense 
and  common  understandings  of  men."  "  Abstractly  speak- 
ing, "  a  declaration  by  the  alleged  donor  of  an  intention 

^  Perley  v.  Perley,  144  Mass.  104.  Generally  that  the  burden  is  on  the  donee,  see 
Smith  V.  Burnet,  35  N.  J.  Eq.  314,  323  ;  Irons  v.  Smallpiece,  2  B.  &.  A.  551  ;  Wal- 
ter V.  Hodge,  2  Swanst.  97  ;  Grey  r.  Grey,  47  X.  Y.  552 ;  Dilts  v.  Stevenson,  2  C. 
E.  Gr.  (17  N.  J.)  407 ;  Johnson  v.  Spips,  5  Hun,  468.  When  the  gift  is  attacked 
by  creditors  of  tlie  donor  for  fraud,  and  to  secure  property  out  of  which  to  satisfy 
their  claims,  the  burden,  in  Arkansas,  is  on  the  donee  to  show  that  the  donor's  in- 
tentions were  innocent,  and  that  he  had  abundant  means  left  to  pay  his  debts: 
Norton  v.  McNutt,  55  Ark.  59;  Stix  v.  Chaytor,  55  Ark.  116. 

'^Henson  v  Kinard,  3  Strobh.  Eq.  371. 


EstabUshnent  of  Gift.  191 

to  give,  and  a  subsequent  possession  by  the  donee  of  the 
thing  intended  to  be  given,  create  together  a  strong  pre- 
sumption that  the  gift  was  actually  made."  ^ 

218.  Words  of  Gift. — No  particuhir  form  of  words 
of  gift  is  required.^  Anything  that  shows  the  donor's 
intention  is  sufficient.^  In  fact,  no  words  are  necessary 
if  the  transaction  is  intended  and  so  understood  by  the 
donor  as  a  gift  to  the  donee.  The  language  used  is  always 
to  be  measured  in  the  light  of  the  attending  circumstances 
and  conduct  of  the  parties.  Conduct  of  the  donee  incon- 
sistent with  the  after-claim  of  a  gift  is  to  be  taken  as 
admission  against  his  interest.  In  an  early  case  of  dona- 
tio mortis  causa,  iho,  donor  said:  "Now,  my  dear  Ann, 
that  there  [viz.,  a  bank  note  and  a  sword-blade  bond], 
they  are  yours ;  but  if  I  live  you  must  give  them  to  me 
again."  This  was  held  to  be  a  good  gift.^  But  words  of 
mere  desire,  looking  to  the  future,  that  the  donee  have  the 
pro2:)erty  is  not  enough ;  such  as  "  I  want  you  to  go  and  col- 
lect that  debt  and  have  the  benefit  of  it ;  I  want  the  business 
settled  up,"  said  by  a  wife  to  her  husband  on  her  death- 
bed.^ Where  the  jury  found  that  there  was  a  parol  gift 
made  in  these  words,  viz.,  '*  I  beg  you  to  recollect  I  have 
given  that  horse  to  my  son,"  the  court  refused  to  disturb 
the  verdict.^  It  is  not  fatal  to  a  gift  in  prcesenti  that  it  is 
in  language  usually  incorporated  in  wills  if  all  the  cir- 
cumstances show  an  intention  to  make  the  gift  effective  at 

1  M'Climey  v,  Lockhart,  1  Bail.  L.  117. 

2 Carpenter  v.  Butterick,  41  Mich   706. 

^  Kenistons  v.  Sceva,  54  N.  H.  24. 

*.Ashton  V.  Dawson,  5  Colly.  r!64,  note.  Donor  handed  donee  a  bond,  sayingr, 
"If  I  die  it  is  yours,  and  then  you  will  have  something."  A  good  gift:  Sndl- 
grove  V.  Bailey,  3  Atk.  214;  Crum  v.  Thornley,  47  111.  192. 

»Cartern  Bnckingliam.  1  Handy,  395;  Smith  v.  Maine,  25  Barb.  33. 

^Fowler  r.  Stuart,  1  M'Cord  L.  504.  "  Father,  I  give  you  all  my  furniture  to  pay 
all  mv  expenses,"'  alluding  to  funerul  expenses,  is  language  for  the  jury  Irom 
which  to  say  whether  it  constituted  a  gift:  Flanigan  v.  Flanigan,  115  Pa.  St.  233. 


192  Gifts. 

once/  Where  a  son,  who  had  taken  care  of  his  mother, 
took  away  a  broken  stove  and  replaced  it  with  a  new  one, 
saying  to  a  third  person  that  he  wanted  to  have  a  good 
stove  there  for  his  mother,  it  was  held  that  this  statement, 
by  itself,  was  insufficient  evidence  of  a  gift  to  her.^ 

219.  Pakticulaeity  of  Proof, — In  order  to  support  a 
gift  something  more  than  a  mere  general  statement  by  the 
witness  that  a  gift  was  made  of  the  property  in  controversy 
is  necessary.  This  is  especially  true  of  donatio  mortis 
causa.  Speaking  of  such  a  gift  Lord  Sugden  said :  "  I 
should  require  not  a  mere  general  statement  of  the  fact  of 
a  gift  having  been  made,  but  to  be  informed  of  the  most 
minute  particulars :  the  amount,  how  it  was  given,  wdiere, 
in  whose  presence,  and  in  what  condition  of  mind  and 
body  the  alleged  donor  was  ;  in  fact,  all  such  particulars  as 
might  be  expected  in  a  fair  transaction."  ^  This,  however, 
is  the  old  rule  of  practice,  adopted  in  the  English  courts 
of  chancery.  Such  a  rule  cannot  be  said  to  now  prevail 
in  this  country.  A  person  claiming  title  to  projjerty  by 
gift  is  not  now  called  upon,  in  order  to  sustain  his  claim, 
to  show  affirmatively,  and  wath  minuteness,  the  circum- 
stances under  which  it  was  made.'*  The  donee  may  testify 
that  the  donor  "  gave  me  the  "  subject-matter  of  the  gift. 
Such  a  statement  cannot  be  treated  as  a  conclusion.  "  It 
avers  the  act  of  giving,  and  would  justify  a  finding  that 
a  gift  took  place,  if  nothing  was  drawn  out  on  further  ex- 

'  Eaton  V.  Carnith,  11  Neb.  231.  Of  course,  if  the  donor  have  no  title  to  the 
subject-matter  of  tlie  gift,  nothing  passes:  Clarkson  v.  Stevens,  106  U.  S.  505; 
S.  C.  29  N.  J.  Eq.  602;  28  N.  J.  Eq.  4S7  ;  Jahns  v.  Nolting,  29  Cal.  507. 

^Nugent  V.  Foster,  49  Mich.  434.  The  mere  act  of  placing  the  subject-matter 
of  the  gift  in  the  donee's  hand  may  be  sufficient,  under  the  circumstances,  to  ren- 
der the  transaction  a  gift:  Essex's  Est.,  20  N.  Y.  Supp.  61. 

'Thompson  v.  Heffeman,  4  !~^ug.  Dec.  (Ir.)  285. 

*  Bedell  v.  Carll,  33  N.  Y.  581  ;  May  v.  May,  36  111.  App.  77  ;  Devlin  v.  Farmer, 
16  Daly,  98. 


Establishment  of  Gift.  193 

amination  to  qualify  it,"  said  the  Supreme  Court  of  Michi- 
gan/ 

220.  Sufficiency  of  Evidence. — What  is  sufficient 
proof  to  establish  a  gift  depends  upon  the  evidence  in 
each  particular  case.  In  one  case  the  oral  evidence  might 
be  sufficient  to  establish  the  claim  of  the  donee,  while  in 
another  it  would  utterly  fail  because  of  the  circumstances 
attending  the  transaction,  regardless  of  the  credibility  of 
the  witness.  Nor  have  the  courts  been  uniform  in  their 
tests  of  the  sufficiency  of  the  proof,  especially  in  dona- 
tiones  mortis  causa  ;  and  what  was  regarded  sufficient  in 
one  case  has  failed  in  another.  There  is  also  a  marked 
difference  between  the  old  ^  and  recent^  cases  on  the  de- 
gree of  proof  required ;  and  even  many  of  the  modern 
cases  still  follow  the  old  cases,  the  courts  not  being  able  to 
break  away  from  the  law  of  precedent,  or  unconscious  of 
a  change  of  views  now  entertained  by  modern  practi- 
tioners, arising  from  a  lack  of  investigation.  It  is  not, 
however,  too  much  to  say  that  "  the  evidence  must  be 
full  and  satisfactory."  *     "  Undoubtedly,"  said  the  Court 

^  Davis  r.  Zimmerman,  40  Mich.  24;  Fowler  v.  Lockwood,  3  Redf.  465.  Almost 
diametrically  tlie  opposite  was  decided  in  Georgia  in  1847  ;  and  these  two  cases 
well  illustrate  the  growing  tendency  of  the  courts  to  relax  the  strict  rules  one  time 
applied  to  gifts.  In  tlie  Georgia  case  a  witness  testified  "that  she  saw  a  gift  made 
by  "  tlie  donor  to  tlie  donee.  This  was  held  to  be  inadmissible,  because  it  was 
testimony  of  no  act  or  fact  from  which  the  court  or  jury  could  draw  the  conclu- 
sion that  a  gift  was  made,  it  being  only  the  opinion  of  the  witness:  Carters. 
Buchanon,  3  Geo.  513.  See,  also,  f^mith  v.  Burnet,  8  Stew.  (N.  J.)  Eq.  314,  affirm- 
ing 7  lb.  219.     Pleading,  see  Section  264. 

=*  Raymond  v.  Sellick,  10  Conn.  480,  485. 

^Love  V.  Francis,  63  Mich.  181. 

*Shirleyv.  Whitehead,  1  Ired.  Eq.  130;  Barniim  v.  Reed,  136  111.  388;  Par- 
ker V.  Hinson,  1  Ired.  Eq.  381  ;  Devlin  v.  Greenswick  Savings  Bank,  125  N.  Y. 
756.  h\  z.  donatio  mortis  causa  in  an  early  English  case,  the  court  said:  "In  a 
case  of  this  sort,  the  court  always  e.xpects  the  most  clear  and  satisfactory  evi- 
dence; and  a  mere  delivery  by  a  husband  to  his  wife  is  far  frombeingconclusive, 
the  possession  of  the  wife  being  in  general  the  possession  of  the  husband  :''  Walter?-. 
Hodge,  1  Wils.  Ch.  445.  "  We  agree  with  the  learned  judge,  that  clear  and  sat- 
13 


194  Gifts. 

of  Appeals  of  New  York,  "  in  such  cases  {donationes 
mortis  causa]  the  proof  must  be  clear  and  convincing,  and 
strong  and  satisfactory,  but  it  is  not  correct  to  say  that 
the  presumptions  of  law  are  against  a  gift  as  the  learned 
judge  charged,  although  it  is  true  that  the  law  does  not 
presume  in  its  favor,  but  requires  clear  and  convincing 
proof;  nor  was  it  proper  to  say  to  the  jury  that  the  fact 
of  a  gift  must  be  j)roved  beyond  susj)icion."  ^  In  an 
Indiana   case  it  was  said:    "Expressions  are  sometimes 

isfactory  evidence  of  the  gift  and  of  the  deliverance  in  pursuance  of  it,  would  be 
enough  without  the  superlative  adjective  [most]  insisted  on  by  counsel:"  Cum- 
mings  V.  Meaks,  2  Pitis.  490  ;  S.  C.  11  Pitts.  L.  Jr.  291.  If  the  transaction  points 
equally  to  a  gift  or  loan,  the  transnction  will  be  regarded  as  a  loan  rather  than  a 
gift,  even  ay  between  father  and  child  :  Slaughter  v.  Tiitt,  12  Leigh,  147  ;  Dunne 
w.  Boyd,  8  Ir.  Eq.  609  (1874).  ''And  I  shall  always  require  strong  evidence, 
more  especially  in  the  case  of  a  clergyman  [as  donee],  before  I  support  a  gift  made 
in  extremis:"  Lord  Sngden  in  Thompson  v-  Heffernan,  4  Sug.  Dec.  (Ir.)  285. 
"  Gifts  made  in  pros[)ect  of  death  are  not  favored  or  encouraged  by  tiie  courts  ; 
"but  when  the  proof  establishes  a  valid  gift  of  that  nature,  it  is  to  be  upheld :" 
Bedell  v.  Carll,  33  K  Y.  581 ;  Hatch  f.  Atkinson,  56  Me.  324.  "When  jrop- 
erty  is  obtained  by  way  ofalle;sied  gifts  from  individuals  who  suppose  themselves 
about  to  die,  it  is  the  duty  of  a  court  of  justice  to  watch  the  evidence  of  the 
transaction  most  narrowly :"  Staniland  v.  Willott,  3  MacN.  &  G.  664,  670.  "A  son 
claiming  property  as  a  gift  fmm  his  father,  or  any  other  person  claiming  it  as  a 
gift,  ought  to  be  held  to  make  reasonably  strict  proof  of  the  gift :''  BouJreau  r. 
Boudreau,  45  111.  480 ;  Richer  v.  Voye,  5  Rev.  Leg.  591.  In  an  action  to  recover 
damages  for  the  killing  of  a  cow,  evidence  that  the  cow  was  given  to  the  plaintiff 
by  a  third  person,  coupled  with  a  request  that  at  a  future  time  the  plaintiff  give 
another  cow  to  the  plaintift's  son,  is  sufficient  evidence  of  ownership  to  support  a 
judgment:  Wood  v.  St.  Louis,  etc.,  R.  W.  Co.,  20  Mo.  App.  601.  "It  is  laid  down 
in  all  the  cases  where  judges  have  commented  on  the  evidence  necessary  to  sup- 
port a  donatio  mortis  causa,  that  it  must  be  established  by  clear  evidence.  The 
proof  must  be  more  than  is  required  merely  to  turn  the  scale  in  favor  of  one  or 
two  equally  probable  conclusions.  It  must  establish  to  the  satisfaction  of  the 
court  that  the  claimnnt's  case  is  not  only  probable,  but  reasonably  free  from 
doubt:"  M'Gonnell  v.  Murray,  3  Irish  Eq.  460  (1869). 

^  Lewis  v.  Merritt,  113  N.  Y.  386,  reversing  42  Hun,  161,  explaining  Grey  v. 
Grey,  47  N.  Y.  552,  and  quoting  from  Grymes  v.  Hone,  49  N.  Y.  17,  that  "As 
there  is  great  danger  of  fraud  in  this  sort  of  gift,  courts  cannot  be  too  cautious 
in  requiring  clear  proof  of  the  transaction  :"  Devlin  v.  Greenwich  Savings  Bank, 
125  N.  Y.  756.  The  rule  "beyond  suspicion  "  as  between  liusband  and  wife  was 
adopted  in  New  Jersey  :  Dilts  v.  Stevenson,  17  N.  J.  Eq.  407  ;  Schick  v.  Grote, 
42  N.  J.  Eq.  352. 


Edablishment  of  Gift.  195 

found  in  the  books  to  the  effect  that  gifts  causa  mortis 
are  not  favored  in  law,  because  of  the  opportunity  which 
they  afford  for  the  perpetration  of  frauds  upon  the  estates 
of  deceased  jDcrsons  by  means  of  perjury  and  false  swear- 
ing ;  but  gifts  of  the  character  of  that  in  question  are  not 
to  be  held  contrary  to  public  policy,  nor  do  they  rest 
under  the  disfavor  of  the  law  when  the  facts  are  clearly 
and  satisfactorily  shown  which  make  it  appear  that  they 
were  freely  and  intelligently  made."  ^ 

221.  Number  of  AVitnesses. — There  is  no  rule,  unless 
fixed  by  statute,  requiring  the  testimony  of  a  certain 
number  of  witnesses  to  establish  a  gift.  By  the  civil  law 
five  witnesses  to  establish  a  donatio  mortis  causa  were  re- 
quired. But  with  us  the  testimony  of  a  single  witness  is 
sufficient,  if  free  from  doubt  or  suspicion  and  clearly 
showing  a  transaction  amounting  to  a  gift.  Even  the 
evidence  of  the  claimant  alone,  when  he  is  not  disquali- 
fied, is  sufficient  to  establish  the  gift.^     A  statute  requir- 

iDevol  V.  Dye,  123  Ind.  321;  Ellis  v.  Secor,  31  Mich.  185.  Where  a  father 
had  expressed  his  intention  to  give  his  son  tlie  note  of  a  third  person  lie  held, 
and  shortly  before  his  death,  and  in  anticipation  of  it,  delivered  certain  notes  to 
his  wife  ior  her  use,  and  then  handed  to  his  son  several  papers,  among  them  the 
note,  including  his  will,  saying :  "  If  I  get  well  bring  them  back  ;  if  I  die,  keep 
them  ;"  or  "  they  are  yours,"  as  one  witness  said  ;  it  was  held  that  there  was  not 
a  gift  of  the  note,  for  the  reason  of  the  fact  that  it  was  clear  that  the 
testator  never  intended  to  make  a  gift  of  all  the  papers,  and  the  note  must  be 
placed  in  the  same  position  tliat  they  occupied  :  Blain  v.  Terryberry,  9  Gr.  Ch. 
286.  Where  the  donor,  when  sick,  gave  the  alleged  donee  a  handkerchief  con- 
taining an  article,  saying:  "  Take  care  of  it ;"  and  the  donee  laid  it  on  a  chair,  at 
which  the  donor  became  angry,  and  she  then  took  it  and  put  it  in  a  book-case, 
locked  it  up,  and  put  the  key,  which  was  one  of  a  bunch  belonging  to  the  donor, 
into  her  pocket,  and  after  his  death  an  unsigned  letter  was  found  in  the  handker- 
chief, giving  the  contents  to  her;  it  was  held  that  there  was  no  gift ;  for  there 
was  nothing  to  show  an  intent  to  give  except  the  letter,  which  could  not  be  con- 
sidered for  lack  of  a  delivery :  Wildish  v.  Fowler,  6  T.  L.  R.  422,  reversing  5  T. 
L.R  113. 

m'Gonnellf.  Murray,  3  Irish  Eq.  460  (1869);  Walsh  r.  Studdart,  4  Dr.  & 
War.  159;  S.  C.  6  Irish  Eq.  161  (a  .single  witness) ;  Gosnahan  r.  Grice,  15  Moo. 
P.  C.  223  ;  Thomas  v.  Lewis,  15  S.  E.  Rep.  389. 


196  Gifts. 

ing  two  witnesses  to  prove  the  delivery  in  a  gift  mortis 
causa  does  not  require  two  witnesses  to  prove  the  gift  it- 
self. That  fact  may  be  shown  by  only  one,  or  by  acts 
and  circumstances/ 

222.  Prior  Declarations  of  Donor. — Declarations 
made  by  a  donor  before  the  gift  is  made,  showing  an  in- 
tent to  make  it,  are  admissible  for  the  donee;  and  the 
length  of  time  elapsing  between  their  utterance  and  the 
alleged  time  of  the  gift  is  a  matter  for  the  consideration 
of  the  jury  in  determining  what  weight  shall  be  given 
them.  Declarations  made  long  anterior,  accompanied  by 
other  declarations  from  thence  down  to  the  time  of  the 
gift,  are  often  of  a  very  convincing  character,  as  showing 
the  intent  of  the  donor  to  make  the  gift  as  claimed  ;  and 
may  tend  to  explain  ambiguous  language  used  at  the  time 
the  gift  is  made.^  These  declarations  of  an  intent  must 
be  followed  up  with  proof  of  a  delivery,  either  actual 
or  constructive,  or  of  declarations  made  afterward  to  the 
effect  that  the  gift  had  been  made.^  Proof  of  declarations 
connected  with  other  gifts  are  usually  not  admissible, 
unless  in  some  way  connected  with  the  one  in  question.* 
If  the  proof  of  a  prior  declaration  offered  merely  shows  an 
intent  or  a  promise  to  give,  and  it  is  not  proposed  to  fol- 
low it  up  with  corroborating  circumstances  of  a  gift,  it 
may  be  excluded ;  for  it  is  of  itself  insufficient  to  establish 
the  gift.^  So  prior  declarations  of  the  donor  in  his  favor 
are  admissible  if  they  tend  to  show  a  continuous  and  ap- 
parently fixed  state  of  mind  and  purpose  in  him,  incon- 

^  Kenlstons  ?■.  .Sceva,  54  N.  H.  24. 

2 Smith  V.  Maine,  25  Raib.  33  ;  Hunter  v.  Hunter,  19  Barb.  631. 

^Larimore  v.  Wells,  29  Ohio  St.  13. 

*  Scott  V.  Berkshire  County  Savings  Bank,  140  Mass.  157.     See  Section  232. 

^Rockwood  V.  Wiggin,  16  Gray,  402;  Coleman  v.  Parker,  114  Mass.  30, 
explained  in  Pritchard  v.  Pritchard,  69  Wis.  373 ;  Yancey  v.  Stone,  7  Rich. 
Eq.  16. 


EstahUshment  of  Gift.  197 

sistent  with  the  alleged  gift,  to  contradict  the  testimony 
of  the  donee.^  Such  declarations  need  not  have  been 
made  in  the  donee's  presence.^ 

223.  Declaeatioxs  at  Time  of  Gift. — The  lanscuage 
of  both  the  donor  and  the  donee  used  at  the  time  the  al- 
leged gift  is  made  is  admissible  as  a  part  of  the  res  gestce. 
It  enters  into  and  becomes  a  part  of  the  transaction,  and 
is  usually  the  most  j^otent  factor  in  determining  the  claim 
that  there  was  a  gift.  The  force  and  effect  of  the  language 
used  is  to  be  determined  by  the  jury.  Such  language,  as 
a  rule,  indicates  the  intent  of  the  parties,  though  it  is  not 
conclusive ;  for  the  acts  and  conduct  of  the  parties,  taken 
in  connection  with  the  language,  may  indicate  an  intent 
on  their  part  contrary  to  that  at  first  blush  indicated  by 
the  language  alone.  Be  that  as  it  may,  however,  it  does 
not  lessen  the  right  of  both  the  donor  and  donee,  not  only 
to  introduce  what  they  both  said,  but  even  what  was  said 
by  any  bystanders,  with  reference  to  the  gift,  made  in 
in  their  joint  j^resence.^  What  declarations  are  a  part  of 
the  res  gestce  of  a  gift  must  dej^end  upon  each  particular 

^  Whitney  v.  Wheeler,  116  Mass.  490;  Sherman  v.  Sherman,  75  la.  136. 

2  Whitwell  V.  Winslow,  132  Mass.  307  ;  Banks  r.  Halton,  1  Nott  &  McC.  221 ; 
Soiirwine  v.  Chiypool,  138  Pa.  St.  126  ;  Miller  v.  Clark,  40  Fed.  Rep.  15. 

^  Duling  V.  Juhnson,  32  Ind.  155 ;  W'oolery  v.  Woolery,  29  Ind.  249 ;  Hackney 
I'.  Vrooman,  62  Barb.  650;  Ashton  v.  Dawson,  2  Colly.  364  n;  Fellows  v.  Smith, 
130  Mass.  378;  AVhitney  v.  Wheeler,  116  Mass.  490;  Evans  v.  Lipscomb,  31  Ga. 
71.  Of  course,  the  declarations  of  the  donor  that  he  made  the  gift  are  admissible 
against  his  personal  representative  in  a  contest  between  them  and  the  donee: 
Hackney  r.  Vrooman,  62  Barb.  650.  Cxenerally,  Lister  r.  Sisters,  35  N.  J.  Fq.  49 ; 
Whitfield  V.  Whitfield,  40  Miss.  352;  Richards  v.  Munro,  30  S.  C.  284.  Stub  of  a 
note:  Cowee  r.  Cornell,  75  N.  Y.  91 ;  S.  C.  31  Am.  Rep.  42S;  .Jolinson  v.  Spies, 
5  Hun,  468;  Higgins  v.  Johnson,  20  Tex.  389;  Johnson  v.  Burford,  39  Tex.  242; 
Smith  V.  Strahan,  25  Tex.  103 ;  Barziza  v.  Graves.  25  Tex.  322 ;  Wat«on  v.  Ken- 
nedy, 3  Strob.  Eq.  1  ;  Lark  v.  Cunningham,  7  Rich.  L.  57.  The  declarations 
need  not  have  been  made  to  the  donee  nor  in  his  presence:  Olds  r.  Powell,  7  Ala. 
652 ;  Whitwell  v.  W^inslow,  132  Mass.  307  ;  Powell  v.  Olds,  9  Ala.  861  ;  Banks  r. 
Hatton,  1  Nott  &  McC.  221 ;  DuflT  v.  Leary,  146  Mass.  533 ;  Rector  v.  Daidey,  14 
Ark.  304. 


198  Gifts. 

transaction  claimed  as  a  gift.  "  The  idea  of  the  res  gestce,^^ 
said  the  Supreme  Court  of  Georgia,  "  presupposes  a  7nain 
fact,  or  principal  transaction ;  for  example,  the  delivery 
into  possession  of  a  slave  might  be  the  main  fact  in  an 
alleged  gift.  .  .  .  The  res  gestae  mean  the  circumstances, 
facts,  and  declarations  which  grow  out  of  the  main  fact, 
are  contemporaneous  with  it,  and  serve  to  illustrate  its 
character.  .  .  .  One  particularity  of  the  main  fact  or 
transaction  ought  to  be  noted,  and  that  is  this,  that  it  is 
not  necessarily  limited  as  to  time ;  it  may  be  length  of 
time  in  the  action.  The  time,  of  course,  depends  upon  the 
character  of  the  transaction ;  it  is,  however,  well  settled 
that  the  acts  of  the  party,  or  the  facts  or  circumstances  or 
declarations  which  are  sought  to  be  admitted  in  evidence, 
are  not  admissible  unless  they  grow  out  of  the  principal 
transaction,  illustrate  its  character,  and  are  contemporary 
with  it."  Consequently,  declarations  of  the  donor  in  the 
evening  of  the  day  of  the  gift,  but  after  it  had  been  made, 
were  held  inadmissible  as  a  j)art  of  the  res  gestae,} 

224.  Declaratioxs  Made  Subsequent  to  the  Time 
OF  the  Alleged  Gift. — Declarations  made  by  the  donor 
after  the  time  of  the  alleged  gift  in  favor  of  the  donee  or 
tending  to  admit  that  a  donation  was  made  of  the  subject- 
matter  of  the  gift  to  the  donee  are  admissible  on  behalf  of 
the  donee  and  those  claiming  under  him,  to  establish  the 
fact  of  the  gift ;  but  such  declarations  are  not  admissible 
on  behalf  of  the  donor,  to  disprove  the  gift,  on  the  ground 
that  he  cannot  defeat  a  title  he  has  once  given,  although 
other  declarations,  admitting  the  gift,  are  in  evidence  for 
the  donee.^  Thus  where  a  wife  claimed,  after  her  husband's 

^Carter  r.  Buchannon,  3  Geo.  513;  Evans  v.  Lipscomb,  31  Geo.  71,  108. 

2  Porter  v.  Allen,  54  Geo  623  ;  Poullain  v.  PouUain,  76  Geo.  420  ;  Bl.nlock  r. 
Miland,  87  Geo.  573  ;  Kimball  v.  Leland.  110  Mass.  325  ;  Scott  v.  Berkshire  County 
Savings  Bank,  140  Mass.  157  ;  Hatch  v.  Straight,  3  Conn.  31 ;  Durham  v.  Shan- 


Establishment  of  Gift.  199 

death,  certain  property  as  her  own  separate  estate,  and 
proved  that  he  on  several  occasions  after  the  marriage  de- 
clared the  property  to  be  hers,  his  declarations  made  out 
of  her  presence  that  the  property  was  his  own  was  held 
inadmissible,  although  she  contended  that  he  "always  dur- 
ing his  lifetime  regarded  and  treated  it  as  her  separate 
property."  ^  But  if  there  is  a  dispute  as  to  the  time  of  the 
gift,  and  especially  if  the  transaction  is  of  an  ambiguous 
character,  such  evidence  may  be  admissible,  according  to 
the  character  of  such  particular  transaction.^  If  the  donor 
retain  possession  of  the  gift,  and  the  time  at  which  it  w^as 
made  is  uncertain  and  the  fact  of  gift  is  in  dispute,  declara- 
tions of  the  donor  while  thus  in  the  manual  possession  of 
the  gift,  claiming  to  be  the  owner,  are  admissible  for  him, 
in  contradiction  of  those  adduced  by  the  donee  admitting 
the  gift.'^  So  it  may  be  stated  generally  that  after-declara- 
tions of  the  donor  are  admissible  in  his  favor  where  they 
tend  to  explain  his  statements  previously  given  in  evidence 
by  the  donee;  or  if  they  are  assertions  not  in  disparagement 
of  the  donee's  title,  but  tending  to  show  an  incapacity  of 
mind  in  the  donor,  and  spoken  in  a  reasonably  short  time 
after  the  gift.'*     The  donee  may  also  show  that  after  the 

non,  116  Ind.  403  ;  Burney  v.  Ball,  24  Geo.  505  ;  Howell  v.  Howell,  59  Geo.  145; 
Woodruff  y.  Cook,  25  Barb.  505  ;  Smith  v.  Maine,  25  Barb.  33;  Ivatt  v.  Finch,  1 
Taunt.  141 ;  Smith  v.  Smith,  3  Bing.  N.  C.  29 ;  Lifter  v.  Lister,  35  N.  J.  Eq.  49 ; 
Bennett  v.  Cook,  28  S.  C.  353;  Pritchard  v.  Pritchurd,  69  Wis.  373;  Griliin  v. 
Stadler,  35  Tex.  695;  Crawford  v.  McElvy,  2  Sp.  (S.  C.)  225.  In  a  controversy 
between  the  donor  and  the  donee  concerning  the  title  to  the  subject-matter  of  the 
gift,  conversations  between  the  donor  and  a  third  person,  who  is  referred  by  the 
donee  to  him  as  the  owner,  is  not  admissible  in  his  favor:  Beecher  v.  Mayall,  16 
Gray,  376  ;  Walden  v.  Purvis,  73  Cal.  518  (inadmissible  even  to  prove  fraud). 
Statements  made  by  a  decensed  donor  after  the  time  of  the  gift  and  set  forth  in 
tlie  pleadings  of  another  coiitrover.Hy  are  not  admissible :  Love  v.  Francis,  63 
Mich.  181. 

'  Baxter  ?'.  Knowles,  12  Allen,  114. 

^See  Section  146  ;  see  Scott  ?■.  Berkshire  Savings  Bank,  140  Mass.  157. 

'Hansen  v.  Bryan,  19  Geo.  167  ;  Bennett  v.  Cook,  28  S.  C.  353. 

*  Howell  V.  Howell,  59  Geo.  145. 


200  Gifts. 

gift  was  made,  as  alleged,  the  donor  did  not  include  the 
subject-matter  of  the  gift  in  his  assessment  list  for  taxa- 
tion.^ But  if  the  donee  introduce  subsequent  declarations 
of  the  donor  in  favor  of  the  gift,  the  donor,  in  order  to 
rebut  the  presumption  thus  raised,  may  also,  it  has  been 
held  in  one  case,  show  his  own  declarations  claiming  the 
ownershi])  of  the  subject-matter  of  the  gift;  and  the  record 
of  a  suit,  abated  because  of  his  death,  may  be  introduced 
by  his  personal  re^jresentative,  where,  in  an  action  of  tort 
for  a  conversion  of  the  property,  he  had  pleaded  not  guilty.^ 
A  different  rule,  however,  was  afterward  adopted  in  the 
same  State  where  the  proof  clearly  showed  a  gift,  and  such 
declarations  were  rejected.  It  was  said  that  the  rule 
adopted  in  Sims  v.  Saunders  was  where  the  evidence  did 
not  conclusively  establish  a  gift,  and  was  made  to  depend 
upon  the  degree  of  clearness  and  weight  of  the  evidence  in 
favor  of  the  gift.  Its  soundness  was  doubted.^  In  a  more 
recent  case  it  was  held  that  the  subsequent  declarations  of 
the  donor  may  be  given  in  evidence  to  rebut  his  declara- 
tions brought  forward  by  the  donee,  but  such  counter- 
declarations  must  not  have  been  made  post-litem  inotam} 
To  render  the  admission  of  subsequent  declarations  errone- 
ous it  must  be  clearly  shown  that  they  were  uttered  at  a 
time  posterior  to  the  time  of  the  gift,  especially  where  the 
time  of  the  transaction  is  not  clear.^ 

225.  Subsequent  Declarations  when  Transaction 
IS  Doubtful  or  Donee  in  Possession. — When  the  cir- 
cumstances are  equivocal  and  it  is  doubtful  whether  the 
donor  intended  a  gift  or  a  loan,  explicit  declaration  of 

1  Whitfield  V.  Whitfield,  40  Miss.  352. 
^  Sims  V.  Saunders,  Harp.  (S.  C.)  374. 

'  Snowden  v.  Pope.  Rice  Eq.  (S.  C.)  174 ;  McKane  v.  Bonner,  1  Bail.  L.  (S.  C.) 
113.     Same  rule  adopted  in  Arkansas:  Ryburn  v.  Pryor,  14  Ark.  505, 
*  Stone  V.  Stroud,  6  Rich.  L.  306. 
^  Gillespie  v.  Burleson,  28  Ala.  551. 


Establishment  of  Gift.  201 

intention  made  after  the  transaction  lias  taken  jDlace  is 
admissible  for  the  j)urpose  of  removing  the  ambiguity/ 
Thus  where  a  donor  deposited  money  in  a  savings  bank  in 
the  name  of  the  donee  without  his  knowledge,  and  re- 
tained possession  of  the  pass-book  until  he  died,  letters 
between  the  bank  and  the  donor  with  reference  to  the  de- 
posit, and  his  declarations  relating  to  the  deposit  while  hold- 
ing the  book  were  admitted,  to  show  the  character  of  the  act.^ 
So  any  declarations  of  the  donor  while  in  possession  of  the 
subject-matter  of  the  gift  is  admissible  in  evidence  as  part 
of  the  res  gestce,  to  prove  the  character  of  his  possession.^ 

226.  Declarations  of  Druxkex  Donor  Attempt- 
ing TO  Kegain  Possession  when  Sober. — The  declara- 
tions of  a  drunken  donor  against  his  interest  is  admissible 
in  evidence,  and  their  weight  is  a  question  for  the  jury  ; 
and  the  donor,  if  the  property  is  sought  to  be  subjected  to 
the  donee's  debts,  may  prove  his  subsequent  acts  and  dec- 
larations when  he  Ijecame  sober,  if  promptly  made  and 
persisted  in,  to  show,  with  other  circumstances,  his  mental 
condition.* 

227.  Inoperative  Deed  to  Show  Declarations  of 
A  Gift. — Though  a  deed  of  gift  is  inoperative  for  the 
lack  of  an  acknowledgment  or  registration,  and  for  that 
purpose  insufficient  to  give  title  to  the  donee ;  yet  it  is 
admissible  as  a  declaration  of  gift,  like  any  parol  declara- 
tion.^ If  a  delivery  is  shown,  such  deed  may  be  deemed 
sufficient  proof  of  a  gift.'' 

'  Doty  V.  Willson,  47  N.  Y.  580 ;  Minchin  v.  Merrill,  2  Edw.  Ch.  333. 

'^  Scott  V.  Berkshire  County  Savings  Bank,  140  Mass.  157  ;  Bennett  v.  Cook,  28 
S.  C.  353 ;  Rtallings  v.  Finch,  25  Ala.  518. 

'Nelson  v.  Iverson,  19  Ala.  95  ;  S.  C.  17  Ala.  216;  Stallings  v.  Finch,  25  Ala. 
518. 

*  Blagg  V.  Hunter,  15  Ark.  246 ;  Morisey  v.  Bunting,  1  Dev.  L.  3. 

5  Myers  v.  Peek,  2  Ala.  648  ;  Sewall  v.  Glidden,  1  Ala.  52. 

^Sewall  V.  Glidden,  1  Ala.  52. 


202  Gifts. 

228.  Reference  in  Will  to  Gift. — A  reference  in  his 
will  to  the  gift,  executed  at  the  time  the  donor  made  the 
gift,  is  relevant  testimony,  tending  to  show  the  gift,  and 
is  admissible  as  a  part  of  the  res  gestce.  It  is  not, 
however,  suflflcient  alone  to  give  title  to  the  donee.^  A 
gift  may  be  confirmed  by  the  will  of  the  donor,  and  a 
devise  of  the  article  formerly  given  is  such  a  confirma- 
tion.^ So  where  a  will  was  executed  after  the  time  of 
the  gift  of  a  slave,  giving  the  donee  only  a  life  estate  in 
the  slave,  such  will  and  the  sworn  petition  of  the  donee 
to  j)robate  it  was  held  admissible  to  rebut  the  testimony 
of  the  oral  declarations  of  the  donor .^  But  the  fact  that 
the  father  had  made  a  will  does  not  prevent  his  son  (his 
donee)  from  showing  a  parol  gift  inconsistent  with  the 
j^rovisions  of  the  will.* 

229.  Declarations  of  Donee. — The  declarations  of  a 
donee  in  possession  concerning  the  ownership)  of  the  gift 
is  admissible  as  a  part  of  the  res  gestce,  to  show  the  charac- 
ter of  his  possession,  whether  the  controversy  is  between 
the  donor  and  donee,  or  between  some  one  claiming  under 
the  donor  and  donee  when  the  donee  is  disclaiming  any 
interest  in  the  gift.^ 

230.  Declarations  to  Prove  a  Delivery. — Decla- 
rations of  the  donor  made  prior  to  the  time  of  the  alleged 
gift,  especially  if  frequently  repeated,  shoAving  a  clear 
intention  to  give,  followed,  after  that  time,  by  declarations 
that  he  had  given,  are  sufiicient  evidence  of  an  actual 

^  Jennings  v.  Blocker,  25  Ala.  415;  Anderson  v.  Dunn,  19  Ark.  650. 

-  Decker  v.  'Waterraixn,  67  Barb.  460. 

'  Barziza  v.  Graves,  25  Tex.  322. 

*Ricliards  v.  Miinro,  30  S.  C  284. 

^  Degraffenreid  v.  Thomas,  14  Ala.  681;  McBride  v.  Thompson,  8  Ala.  650; 
Thomas  v.  Degraffenreid,  17  Ala.  602.  But  the  declarations  of  a  mere  agent  in 
control  are  not  admissible :  Degraffenreid  v.  Thomas,  14  Ala.  681 ;  Crane  v.  Allen, 
11  La.  Ann.  493;  Durham  v.  Shannon,  116  Ind.  403. 


Establishment  of  Gift.  203 

delivery  if  the  declarations  were  not  loose  and  playful ;  and 
this  is  especially  true  where  the  donor  is  under  a  moral 
obligation  to  give.  Nor  is  the  force  of  such  declarations 
weakened  by  the  fact  that  the  donor  remained  in  possession 
if  such  j)Ossession  be  accounted  for  or  explained ;  such  as 
proof  of  an  agreement  with  the  donee,  on  the  part  of  the 
donor,  to  hire  the  subject-matter  of  the  gift.^  In  a  Penn- 
sylvania nisi  prius  case  it  was  said  :  "  The  delivery  may 
be  proved  by  the  declaration  of  the  donor  just  as  the  gift 
itself  may  be ;  and  when  the  donor  declares  that  he  had 
given  at  a  previous  time,  and  that  the  donee  had  then 
become  the  owner,  it  is  implied  that  delivery,  and  indeed 
every  other  formality  necessary  to  create  a  complete  gift, 
had  taken  place.  The  law  always  j)i'esumes  knowledge 
of  its  requirements."  "^ 

231.  Declaratioxs  Ixsufficiext  to  Establish  Gift. 
— Bare  declarations  are  not  sufficient  to  make  a  gift;  and, 
therefore,  the  jjerson  on  whom  the  burden  devolves  to  es- 
tablish a  gift  must  prove  something  more  than  the  decla- 
rations of  the  donor  that  a  gift  has  been  made ;  he  must 
show  some  act  from  which  the  jury  may  presume  a  de- 
livery. Therefore  a  statement  of  a  witness  that  the  donor 
said  he  had  given  the  subject-matter  of  the  gift,  naming 

^  Blake  v.  Jones,  Rail.  Eq.  (S.  C.)  141.  In  ihU  case  the  conrt  observed:  "As  it 
is  said  in  repeated  adjudications,  Brashears  v.  Blasinj^ame,  1  N.  &  M.  2"23,  and 
Reid  V.  Colcock.  lb.  592  when  a  party  says  he  has  given,  he  may  be  fairly  pre- 
sumed to  have  observed  the  requisite  ceremonies :"  Language  indorsed  in  Bennett 
i;.  Cook,  28  S.  C.  353,  3  3 ;  Yancey  v.  Field,  85  Va.  756. 

^Malone's  Estate,  37  Leg.  Int.  C3 ;  affirmeil,  38  Leg.  Int.  303;  Harris  v.  Hop. 
kins,  43  Mich.  272.  In  the  Pennsvlvania  case  the  husband,  the  donor,  hnd 
regained  possession  of  the  gift.  In  Wisconsin  it  is  said  that  "such  evidence  by 
all  authority  is  weak  and  unsatisfactory  without  corroboration:"'  Priti  hard  r. 
Pritchard,  69  Wis.  373.  In  Barziza  v.  Graves,  25  Te.\'.  322,  it  is  said  that  where 
it  is  attempted  to  prove  a  gift  from  a  husband  to  a  wife  by  declarations  alone, 
every  admissible  evidence,  though  ever  so  slight,  which  tends  to  counteract  the 
evidence  of  the  husband's  admissions  should  be  admitted. 


204  Gifts. 

it,  to  the  donee,  and  lie  had  no  right  to  sell  it,  is  insuffi- 
cient alone  to  establish  the  gift.^  But  the  donor's  admis- 
sion that  he  had  delivered  the  property  is  competent  evi- 
dence upon  the  question  of  its  delivery.^  But  it  has  also 
been  said  that,  without  corroboration,  proof  of  a  gift  by 
mere  declarations  is  quite  weak  and  unsatisfactory.^  In 
the  case  of  a  donatio  mortis  causa  a  conversation  with  the 
deceased  which  may  be  regarded  as  a  narrative  by  him  of 
what  he  had  done  on  a  former  occasion  is  not  sufficient  to 
establish  the  gift  as  a  mortis  causal  Admissions  of  the 
donor,  however,  that  the  gift  had  been  made  may  be  suffi- 
cient proof  to  establish  it.^ 

232.  Declarations  as  to  Other  Gifts. — Declara- 
tions of  the  donor  as  to  his  intent  to  make  other  gifts 
than  the  one  in  controversy  is,  as  a  general  rule,  in- 
admissible.^ 

233  Neighborhood  Reports. — Reports  current  in 
the  neighborhood  that  the  donor  had  made  the  gift  to  the 
donee,  or  reports  that  when  he  made  it  he  was  drunk  and 
that  he  disowned  it  when  sober,  is  not  admissible  in  evi- 
dence in  an  action  between  the  donor  and  donee,  or  any 
one  claiming  under  the  latter.'^ 

'Anderson  v.  Baker,  1  Geo.  595.  See  Carter  'j.  Bucliannon,  3  Geo.  513;  Evans 
V.  Lipscomb,  31  Geo.  71,  109  ;  Burney  v.  Ball,  24  Geo.  505 ;  Hunter  v.  Hunter,  19 
Barb.  631;  Smith  r.  Burnet,  35  N.  J.  Eq.  314,  323;  Backer  v.  Meyer,  43  Fed. 
Eep.  702;  Tomlinson  v.  Ellison,  104  Mo.  105. 

-  Kenistons  v.  Sceva,  52  N.  H.  24. 

^Pritchard  v.  Pritchard,  69  Wis.  373.  See  Barziza  v.  Graves,  25  Tex.  322; 
Barnum  t.  Reed,  136  111.  3S8  (not  sufficient). 

*  Hebb  V.  Hebb,  5  Gill  (Md.),  506. 

*  See  Section  230 ;  Harris  v.  Hopkins,  43  Mich.  272.  But  such  an  admission 
made  by  the  donor  while  in  possession  of  the  gift,  accompanied  by  an  explanation 
that  he  had  hired  it  of  the  donee,  is  not  sufficient  evidence  of  a  gift :  Bryant  v. 
Ingraham,  16  Ala.  116. 

6  Olds  V.  Powell,  7  Ala.  652 ;  Porter  v.  Allen,  54  Geo.  623.    See  Section  222. 
^Blagg  V.  Hunter,  15  Ark.  246. 


Establishment  of  Gift.  205 

234.  Ijttent  of  the  Donor. — The  intention  of  the 
donor  to  give  is  always  a  subject  of  investigation.  The 
validity  of  every  gift  depends  upon  the  donor's  intention 
to  give ;  and  that  intent  must  be  gathered  from  his 
language  and  conduct  and  the  circumstances  attending 
the  transaction.  For  without  an  intent  to  give  the 
entire  transaction  cannot  be  taken  as  a  gift,  and  the 
claim  of  the  donee  must  fail,  regardless  of  the  under- 
standing he  had  or  the  extent  to  w^hich  he  was  misled, 
unless  the  element  of  an  estoppel  intervene/  Anything 
that  would  repel  such  an  intention  is  also  admissible 
in  evidence.^  Of  course,  any  evidence  showing  that 
the  donor  did  not  then  consider  the  gift  completed,  but 
did  consider  some  further  act  on  his  part  as  necessary  is 
also  admissible,  as  tending  to  show  that  he  had  not  yet 
yielded  complete  control  over  the  subject-matter  of  the 
gift.  But  a  request  by  the  donor  of  a  mortis  causa  that 
the  subject-matter  of  the  gift  should  not  be  disposed  of 
until  after  his  death,  for  he  did  not  know  what  might 
happen,  or  that  he  might  need  it,  is  simply  a  statement 
of  the  law  applicable  to  such  a  gift  and  does  not  show 
an  intention  on  the  part  of  the  donor  to  perform  some 
further  act  in  order  to  complete  the  gift.^ 

235.  Circumstances  Attending  Gift. — Proof  of  tlie 
circumstances  attending  the  alleged  gift  is  always  of  value 
and  admissible  both  for  and  against  the  claim  that  a  gift 
was  actually  made.    The  circumstances  lend  and  give  color 

» Stevens  v.  Stevens,  2  Eedf.  2G5 ;  Smith  v.  Burnet,  35  N.  J.  Eq.  314, 324  ;  Hitch 
V.  Davis,  3  Md.  Cli.  266 ;  Gray  v.  Barton,  55  N.  Y.  68 ;  Fowler  v.  Stuart,  1 
M'Cord  L.  504;  McGonnell  r.  Murray,  L.  E.  3  Eq.  (Ir.)  460. 

^  Smith  V.  Maine,  25  Barb.  33.  Unsigned  orders,  thougli  ineffectual  if  thev  had 
been  signed,  may  be  given  in  evidence  to  show  the  donor's  intention  :  Dunne  ;•. 
Boyd,  8  Ir.  Eq.  609  (1874).  In  a  donatio  mortis  causa  it  is  is  said  that  the  intent 
must  be  clearly  shown  :  Hatch  v.  Atkinson,  56  Me.  324. 

"Grymes  i-.  Hone,  49  N.  Y.  17,  20. 


206  Gifts. 

to  the  transaction,  without  which  it  would  be  difficult  to 
definitely  understand  the  language  used  by  or  the  acts  of 
the  parties.  They  explain,  often,  the  language  of  the 
parties,  and  give  a  significance  to  the  language  they  used 
which  otherwise  would  be  meaningless  or  ambiguous.^ 

236.  Proof  of  Gift  from  Circumstances. — Lan- 
guage of  donation  need  not  necessarily  be  used  in  order 
to  make  a  gift  effectual.  A  valid  gift  may  be  shown  by 
the  acts  and  conduct  of  the  j^arties.  Such  is  strikingly 
the  case,  as  we  have  seen,^  where  a  parent  in  the  Southern 
States  sent  a  slave  to  the  home  of  his  recently-married 
child,  and  there  permitted  it  to  remain  ;  or  where  a  parent 
now  sends  household  furniture,  or  articles  suitable  for  and 
needed  by  his  recently-married  child,  to  its  home,  and  ac- 
quiesces in  such  child's  retention  of  the  gift.^  Many  in- 
stances arise  in  the  ordinary  life  where  the  acts  of  the 
donor  and  donee  with  reference  to  the  subject-matter  of 
the  gift  show  as  clear  intent  on  the  part  of  the  donor  to 
give  and  on  the  part  of  the  donee  to  accept  as  if  that  in- 
tent had  been  expressed  in  language."^  Thus  where  a  wife, 
a  tenant  for  life  of  her  husband's  estate,  satisfied  of  record 
a  mortgage  thereon,  and  for  sixteen  years,  until  her  death, 
made  no  sign  that  she  regarded  herself  as  a  creditor  of  the 
estate,  it  was  held  that  the  transaction  amounted  to  a  gift 
to  the  remaindermen,  who  Avere  her  children.^  It  occa- 
sionally happens  in  donationes  mortis  causa  that  the  final 
act  of  giving  is  evidenced  only  by  the  acts  or  conduct  of 
the  donor.  Thus  where  it  was  clear  that  a  father  fully 
intended  to  make  a  gift  of  his  daughter's  obligation  to  her 

1  Henson  v.  Kinard,  3  Strob.  Eq.  371 ;  Poullain  v.  Poullain,  79  Geo.  11. 
^  See  Section  13. 

3  Falconer  v.  Holland,  5  S.  &  M.  689. 
*  Carter  v.  Judge,  2  S.  &  M.  42. 

5  Estate  of  Wandel,  IG  Phila.  230;  S.  C.  40  Leg.  Int.  131  ;  Toplis  v.  Heyde, 
4  Y.  &  C.  173. 


Establishmeiit  of  Gift.  207 

as  evidenced  by  his  repeated  prior  declarations,  and,  when 
so  near  his  death  that  he  coukl  hardl}^  utter  a  word,  visi- 
bly manifested  his  satisfaction  at  the  delivery  to  her,  in 
his  presence  by  a  third  person,  of  the  obligation,  and 
pressed  the  hands  of  his  daughter  while  she  held  the  2)a- 
pers,  the  gift  was  upheld/ 

237.  Value  of  Gift  and  Propeety  of  DojS^or — Age 
OF  Donor, — The  value  of  the  gift  and  the  ability  of  the 
donor  to  make  it,  and  the  amount  of  property  in  his  pos- 
session after  the  gift  is  made,  especially  taking  into  con- 
sideration his  age  of  life,  are  always  questions  for  the 
consideration  of  the  jury.  A  man  is  not  likely  to  strip 
himself  of  all  his  property  and  leave  himself  without  sup- 
jDort ;  neither  is  a  man  in  early  life  as  likely  to  divest  him- 
self of  the  greater  part  of  his  property  as  a  man  of  ad- 
vanced age  who  can  have  but  few  years,  in  all  likelihood, 
to  live.  It  is  no  uncommon  occurrence  that  an  ao;ed  man 
who  expects  to  live  only  a  few  years  will  make  a  gift  of 
the  greater  part  of  his  property  to  an  object  of  his  affec- 
tions, reserving  what  he  considers  a  safe  and  suitable 
provision  for  himself  for  the  years  he  expects  to  survive, 
while  a  man  in  early  life  would  not  thus  strip  himself  of 
property,  deprive  himself  of  the  power  that  wealth  brings, 
and  render  himself  liable  to  come  to  want  or  250verty 
before  he  had  lived  out  his  expected  length  of  years. 
These  are  all  matters  for  consideration  when  the  validity 

1  Duffield  V.  Hicks.  1  Dow  &  C.  1 ;  S.  C.  1  Bligh,  N.  S.  497.  But  see  Blain  v. 
Terryberry,  9  Gr.  Ch.  286.  "  The  situation,  relation,  and  circumstances  of  tlie 
parties,  and  of  the  subject  of  tlie  gift  may  be  taken  into  consideration  in  deter- 
mining the  intent  to  give  and  the  fact  as  to  delivery:"  Cooper  v.  Burr,  45  Barb. 
3,S,  quoted  in  Kurtz  v.  Smithers,  1  Dem   399. 

A  father  purchased  aland  certificate  and  paid  for  it  in  part  with  his  children's 
money  and  in  part  with  his  own,  a-id  had  a  conveyance  raide  to  them.  This  wa« 
held  to  show  a  gift  to  them  of  the  money  of  his  own  tliat  he  liad  paid  :  Burk  r. 
Turner,  79  Tex.  276.     See  Rinker  v.  Rinker,  20  Ind.  185, 


208  Gifts. 

of  a  gift  is  involved.  Thus  where  a  father  in  early  life 
gave  his  infant  son  nearly  all  his  property,  leaving 
scarcely  anything  for  his  own  support  or  that  of  his  wife 
or  of  the  children  he  might  thereafter  have,  the  court 
said  t'hat  the  proofs  to  support  the  allegation  of  such  a 
gift  must  be  strinojent  to  be  entitled  to  full  confidence.^  If 
the  gift  is  trifling  in  value,  then  neither  the  age  nor 
property  of  the  alleged  donor  is  of  any  weight,  esi^ecially 
if  he  is  a  man  of  some  property.^ 

238.  Affection  of  Doxor  for  Donee. — A  gift  is 
always  a  bounty ,  a  free-will  offering  from  the  donor  to 
the  donee,  and  the  latter  is  always  the  object  of  the  for- 
mer's generosity.  Generosity  springs  from  an  affection 
of  the  heart,  and  it  seldom  prompts  man  to  make  a  gift 
to  a  person  who  is  not  aflectionately  regarded  by  the 
donor.  The  love  of  the  donor  for  the  donee  may  extend 
over  a  long  period  or  be  of  even  momentary  duration ; 
and  the  probability  of  an  intent  to  make  a  gift  may  or 
may  not  be  as  strong  in  the  one  instance  as  in  the  other, 
being  usually  measured  according  to  its  intensity.  These 
circumstances  are,  however,  questions  for  the  jury  to 
weigh  after  the  facts  to  vshow  them  have  been  detailed  by 
the  witnesses.  It  is,  therefore,  always  competent  to  show 
how  the  donor  regarded  the  donee,  and  the  affection  he 
bore  for  him.^  So  it  may  be  shown  that  the  donor  was 
under  a  moral  obligation  to  the  donee,  to  reward  him 
for  love  and  attention  bestowed  by  the  latter  on  the  former.* 

» Parker  v.  Hinson,  1  Ired.  Eq.  381  ;  Meach  v.  Meach,  24  Vt.  591  ;  Ross's 
Appeal,  127  Pa.  St.  4. 

^  Where  a  gift  of  bills  was  claimed  as  a  donatio  mortis  causa,  it  was  considered 
as  a  suspicious  circumstance  that  their  amount  was  not  disclosed  :  Walter  v. 
Hodge,  1  Wils.  Ch.  445. 

3  Henson  v.  Kinard,  3  Strob  Eq.  371 ;  Duffield  v.  Hicks,  1  Dow.  &.  C.  1 ;  S.  C.  1 
Bligh,  N.  S.  497. 

*  Smith  V.  Maine,  25  Barb.  33. 


Establish7nent  of  Gift.  209 

239.  Illicit  Relations  of  Donor  and  Donee. — If 
the  donor  and  donee  have  had  illicit  relations,  or  have 
lived  together  as  husband  and  wife,  that  is  always  a  mat- 
ter for  consideration,  and  usually  is  a  factor  of  weight 
■against  the  donee,  especially  where  the  establishment  of 

the  gift  rests  mainly  on  her  testimony.  Donors  are  usu- 
ally not  as  liberal  to  their  paramours,  as  the  latter  would 
have  us  believe  after  the  former  are  dead.  Such  gifts  are 
regarded  with  suspicion.^ 

240.  Relationship  of  Donor  and  Donee. — It  may 
always  be  shown  what  relationship  the  donor  and  donee 
bore  to  each  other ;  for  a  person  is  more  apt  to  make  a 
relative,  especially  of  his  own  blood,  the  object  of  his 
bounty  than  a  mere  stranger.  Such  proof  shows  a  motive 
for  the  gift,  and  often  a  very  strong  one  when  the  donee 
has  a  moral  right  to  expect  aid  from  the  donor.^ 

241.  Wife  to  Husband. — There  is  nothing  to  prevent 
a  wife  making  a  gift  of  her  separate  personal  estate  to  her 
husband,  but  such  a  gift  is  never  presumed.  To  support 
it  the  evidence  must  be  clear  and  unequivocal,  and  her 
intention  free  of  doubt.^  Much  stress,  however,  has  been 
laid  upon  these  kind  of  gifts  in  the  language  used  with 
reference  to  them,  pointing  out  the  danger  of  fraud  or 
undue  influence  of  the  husband,  and  the  necessity  of 
adopting  a  stringent  rule  to  avoid  imposition  upon  her. 
If  it  clearly  appears  that  she  intended  to  make  the  gift, 
and  that  she  was  not  coerced  or  overpersuaded  by  her 
husband  or  his  agents,  then  the  gift  should  be  upheld 

'Shirley  v.  Whitehead,  1  Ired.  Eq.  130.  The  illicit  relations  may,  however, 
afford  the  reason  why  the  donor  made  the  gift. 

2  Estate  of  Wandel,  16  Phila.  230;  S.  C.  40  Leg.  Int.  131;  Smith  v.  Maine, 
25  Barb.  33;  Capek  v.  Kropik,  129  111.  509;  Rhodes  v.  Child,  64  Pa  St.  18. 

^Brooks  V.  Fowler,  82  Geo.  329;  Conner  v.  Root,  11  Colo.  183. 
14 


210  Gifts. 

with  as  much  reason  as  her  gift  to  her  child  or  other  j)er- 
son  having  a  moral  claim  on  her  bounty.^ 

242.  Presumption  of  Gift  by  Wife  to  Her  Hus- 
band.— There  is  no  presumj)tion  that  a  wife  has  made  a. 
present  of  her  separate  property,  or  any  part  of  it,  to  her 
husband  ;  nor  of  ^^roperty  she  inherits  and  which  does  not 
come  to  her  stamped  as  her  se2:)arate  estate.  Under  the 
common  law,  of  course,  the  wife's  personal  property  be- 
comes his  if  he  reduced  it  to  possession,  and  while  the 
presumption  may  or  may  not  be  that  he  did  reduce  it  to 
his  possession ;  yet  that  presumption,  whichever  way  it 
may  tend,  in  no  way  relieves  him  from  the  burden  of 
showing  a  gift  of  the  property  by  her  to  him  when  he 
claims  it  as  a  gift.^ 

243.  Gift  by  Wife  to  Husband  of  the  Rents  or 
Profits  of  Her  Separate  Estate. — If  a  married  woman 
living  with  her  husband  permits  him,  without  objection, 
to  receive  the  income  of  her  separate  estate,  or  to  appro- 
priate any  annual  payments,  such  as  pin  money  directed 
to  be  paid  to  her,  these  payments  are  deemed  to  have  been 
made  to  or  appropriated  by  him  with  her  consent,  and  she 
cannot  call  him  to  an  account  concerning  them.  And  if 
he  aj)propriate  them  even  for  his  entire  life,  she  cannot 
maintain  an  action  against  his  estate.     In  such  instances 

^  Cain  V.  Ligon,  71  Geo.  692 ;  Sasser  v.  Sasser,  73  Geo.  275.  If  slie  give  her 
property  to  a  person  not  her  husband,  the  latter's  ill  treatment  of  her  may  i)e 
shown  as  a  motive  and  reason  for  making  the  gift  when  he  attacks  its  validity  : 
Conner  v.  Root,  11  Colo.  183.  But  where  the  husband  was  sick,  and  he  and  liis 
wife  agreed  to  divide  their  furniture  and  separate,  and  his  father  took  him  and 
his  furniture  to  his  house,  where  he  died  in  a  few  days,  and  the  father  claimed 
this  furniture  as  a  gift  from  his  son,  it  was  held  that  it  was  irrelevant  to  show  tiie 
happy  relations  that  had  existed  between  the  husband  and  wife:  Flanigan  v. 
Flanigan,  115  Pa.  St.  233. 

2  Vinden  v.  Fraser,  28  Gr.  Ch.  502.  See  O'Doherty  v.  Ontario  Bank.  32  C.  P. 
(Can.)  285. 


Estahlishment  of  Gift.  211 

the  presumption  is  tliat  he  took  them  with  her  consent 
and  by  way  of  gift.^  The  same  rule  prevails  if  she  ex- 
pressly authorize  him  to  receive  the  income,  without  say- 
ing what  he  shall  do  with  it.^  Of  course,  the  wife,  or  those 
claiming  through  her,  may  show  that  the  income  was  not 
a  gift;  but  she  has  the  burden  to  prove  such  a  claim.  It 
is  immaterial  how  he  uses  this  income,  whether  for  the 
support  of  the  family,  in  the  repair  of  her  sej^arate  estate, 
or  for  his  own  separate  benefit ;  the  same  rule  of  presump- 
tion of  a  gift  to  him,  under  such  circumstances,  prevails.^ 

244.  Gift  by  Husband  to  Wife. — The  motive  of  a 
husband  to  make  a  gift  to  his  wdfe  is  very  strong.  Their 
relationship  is  the  most  intimate  in  the  world.  She  usu- 
ally is  dependent  on  him  for  her  d^ily  bread  and  neces- 
saries of  life,  and  to  him  she  must  usually  look  for  her  sup- 
port during  widowhood,  if  she  survive  him.  Love  for  no 
other  mortal  appeals  to  him  more  strongly  as  an  object 
of  his  bounty  and  generosity  ;  and  ujDon  no  other  can  he 
bestow  a  gift  with  so  little  pecuniary  loss  to  himself;  for 
w^hatever  supplies  her  wants  lessens  the  obligations  rest- 
ing upon  him  to  provide  for  them.  But  this  intimate  re- 
lationship and  daily  contact  is  one  to  be  carefully  consid- 
ered in  determining  the  weight  of  language  used  by  the 

1  Smith  V.  Camelford,  2  Ves.  Jr.  C98  ;  Powell  v.  Ilankev,  2  P.  W"ms.  82 ;  Squire 
V.  Dean,  4  Bro.   C.  C  326. 

^  Milnes  ?;.  Eusk,  2  Ves.  Jr.  488;  Methodist  Episcopal  Church  v.  Jarques,  3 
Johns.  Ch.  77;  Beresford  v.  Archbishop  of  Armagh,  13  Situs.  643;  Thrupp  v. 
Harraan,  3  My.  &  K.  513  ;  Charles  v.  Coker,  2  S.  C.  122;  Eeeder  v.  Flinn,  6  S. 
C.  216  ;  Jaques  v.  Methodist  Episcojial  Church,  17  Johns.  549  ;  S.  C.  8  Am.  Dec. 
447;  Bradish  v.  Gibbs,  3  Johns.  523;  Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9; 
Kitch  V.  Hyatt,  3  McArthur,  536  ;  Lyon  v.  Green  Bay,  etc.,  R.  Co.,  42  Wis.  538; 
McClure  v.  Lancaster,  24  S.  C.  273;  Yale  r.  Dederer,  22  N.  Y.  450  ;  Gardner  v. 
Gardner,  1  Giff.  126;  Kelley  v.  Dawson,  2  Moll.  87  ;  Payne  v.  Little,  26  Beav.  1  ; 
Buckeridge  v.  Glassie,  Cr.  &  P.  126  ;  Bartlett  v.  Gillard,  3  Riiss.  149;  Dalbiac  v. 
Dalbiac,  16  Ves.  116. 

3  Eeeder  u  Flinn,  6  S.  C.  216. 


212  Gifts. 

husband,  purporting  to  make  a  gift  to  her.  Words  which 
used  toward  a  stranger  would  be  of  weight,  when  used 
toward  the  wife  in  the  househokl  circle  will  carry  little 
conviction  of  an  intent  to  part  with  property.  In  a  Mis- 
sissippi case  it  was  said  that  "  The  property  of  husbands 
and  wives  would  be  held  by  a  frail  tenure,  indeed,  if  casual 
remarks,  such  as  those  referred  to  by  the  witness,  dropped 
in  the  course  of  conversations  in  the  intimacy  of  the  family 
circle,  should  be  held  to  be  sufficient  evidence  of  transfer 
of  estate."  ^  Where  a  woman  was  married  in  Eng- 
land and  came  to  this  country,  bringing  with  her  some 
money  she  had  before  the  marriage  and  some  more  she 
acquired  after  that  event  by  her  own  labor,  it  was  de- 
cided that  this  money  was  the  husband's  by  his  marital 
rights ;  and  that  although  they  both  supposed  the  money 
belonged  to  her,  a  presumption  of  a  gift  or  transfer  did 
not  arise  from  his  acquiescence  in  her  possession,  by  his 
asking  her  for  a  loan  of  a  portion  of  the  money  and  his 
payment  back  of  a  part  and  promise  to  pay  the  whole.^ 
A  gift  mortis  causa,  it  would  seem,  may  be  upheld  though 
resting  on  the  wife's  evidence  alone;  but  this  is  especially 
true  when  such  evidence  is  free  from  suspicion  and  cor- 
roborated, however  slight  the  corroboration  may  be.^ 

245.  Purchase   of   Land   by   Husband   but    Con- 
veyance TO  Wife. — If  a  husband  purchase  land   and 

^  Dyer  v.  Williams,  62  Miss.  302. 

'^King  V.  O'Brien,  1  J.  &.  S.  (N.  Y.)  49 ;  Cain  v.  Ligon,  71  Geo.  692;  Walter  v. 
Hodge,  Wils.  Ch.  445.  If  land  is  conveyed  to  his  wife  at  the  purchaser's  request  it 
is  presumed  to  be  a  gift :  Read  v.  Ralim,  65  Cal.  343,  though  if  conveyed  to  a  stran- 
ger at  the  purchaser's  request,  he  would  hold  it  intrust  for  such  purchaser: 
Tryon  v.  Huntoon,  67  Cal.  325.  Tiie  forms  of  a  gift  must  be  observed  or  it  will  be 
void:  Atkinson  v.  Atkinson,  M  La.  Ann.  491  ;  Roberts  v.  Riker,  2  Pa.  Leg.  Gaz. 
131 ;  Faulk  v.  Faulk,  23  Tex  653 ;  Fitts  r.  Fitts,  14  Tex.  443  ;  Bradshaw  v.  May- 
field,  18  Tex.  21. 

^  McEdwards  v.  Ross,  6  Gr.  Ch.  373.  See  generally  Purdham  v.  Murray,  9  Ont. 
A  pp.  309,  reversing  29  Gr.  Ch.  443. 


Establishment  of  Gift.  213 

cause  it  to  be  conveyed  to  his  wife,  the  presumption  is  that 
it  is  a  settlement  upon  her  ;  but  being  a  question  of  inten- 
tion, he  may  repel  such  presumption.^  His  acts  and  dec- 
larations contemporary  with  the  purchase  and  conveyance 
are  admissible  to  show  his  intention  in  making  the  settle- 
ment, but  his  subsequent  acts  and  declarations  are  ex- 
cluded." The  husband  cannot  be  asked  in  open  court, 
when  called  as  a  witness,  what  his  motives  or  intentions 
were  when  he  made  the  settlement,"^  The  subsequent 
misconduct  of  the  wife  does  not  affect  the  settlement,  even 
though  the  husband  obtain  a  divorce  from  her  because  of 
such  misconduct."^ 

'  Lister  v.  Lister,  35  N.  J.  Eq.  49  ;  Linker  v.  Linker,  32  N.  J.  Eq.  174 ;  Stevens 
V.  Stevens,  70  Me.  92;  Lux  v.  HoflJ  47  111.425;  Cotton  v.  Wood,  25  la.  43; 
Thomas  i'.  Thomas,  107  Mo.  459  ;  Darrier  v.  Darrier,  68  Mo.  222 ;  Irvine  v. 
Greer,  32  Gratt.  411. 

^Gillespie  v.  Burleson,  28  Ala.  551;  Garner  v.  Graves,  54  Ind.  188;  Grain  v. 
"Wright,  46  111.  107;  Cairns  v,  Colburn,  104  Mass.  274;  Cormerais  v.  Wessel- 
hoeft,  114  Mass.  550;  Kelly  v.  Campbell,  2  Abb.  App.  Dec.  492;  Ferris  v. 
Parker,  13  Tex.  385;  Ingersole  i'.  Truebody,  40  Cal.  603;  Meyer's  Appeal  77 
Pa.  St.  482 ;  McCampbell  v.  McCampbell,  2  Lea,  661. 

^  Woods  V.  Whitney,  42  Cal.  358 ;  Gillespie  v.  Walker,  56  Barb.  185.  See 
Wormley  f.  Worraley,  98  111.  544.  The  same  rule  applies  to  an  advancement 
made  by  a  parent  to  a  child  :  Betts  v.  Francis,  1  Vr.  152  ;  Christy  v.  Courtenay, 
13  Beav.  96;  Williams  v.  Williams,  32  Beav.  370;  O'Brien  v.  Sheil,  L.  E.  7  Ir. 
Eq.  255  (which  criticises  Devoy  v.  Devoy,  3  Sni.  &.  Giff.  403)  ;  Cartwris;ht  v. 
Wise,  14  111.  417;  Sanderiin  v.  Sanderlin,  24  Geo.  583;  Sharp  v.  Maxwell,  30 
Miss.  589;  Brad^her  v.  Cannady,  76  N.  C  445;  High  r.Stainback,  1  Stew.  (Ala.) 
24;  M'Kane  v.  Bonner,  1  Bail.  L.  113. 

*Bent  V.  Bent,  44  Vt.  555;  Edgerly  v.  Edgerly,  112  Mass.  175;  Orr  v.  Orr,  8 
Bush.  156  ;  Vreeland  v  Ryno,  26  N.  J.  Eq.  160  ;  S.  C.  27  N.  J.  Eq.  522 ;  Huntly  v. 
Huntly,  6  Ired.  Eq.  514;  Weathersby  v.  Wheathersby,  39  Miss.  652;  Morrall  i'. 
Morrall,  L.  R.  6  P.  D.  98;  Cliarlesworth  v.  Holt,  L.  R.  9  Exch.  38;  Porter  v. 
Porter,  27  Gratt.  599 ;  Baggs  z;,  Baggs,  54  Geo.  95;  Johnson  v.  Johnson,  Walk. 
Ch.  309.  For  prior  misconduct  see  Chew  v.  Chew,  38  la.  405  ;  Switzer  ?'.  Switzer, 
20  Gratt.  574;  Grove  v.  Jeager,  60  111.  249.  That  equity  will  not  set  aside  a 
conveyance  made  in  the  expectation  that  the  husband  would  survive  the  wife, 
when  she  survive  him,  see  Spring  v.  Hight,  22  Me.  408;  Andrews  v.  Oxley,  38 
la.  578;  Cotton  v.  Wood,  25  la.  43  ;  Bettle  r.  Wilson,  14  Ohio,  257.  By  mistake 
property  of  a  wife  was  conveyed  to  her  and  her  hu'^band  jointly,  and  he  agreed  to 
convey  it  to  her.  Seventeen  years  afterward  he  did  so,  but  after  judgment  had 
been  rendered  against  him.  It  was  held  that  this  was  no  gift,  and  that  the  con- 
veyance could  not  be  attacked  as  fraudulent :   De  Voe  i'.  Jones,  82  la.  66. 


214  Gifts, 

246.  Presumption  of  Gift  by  Husband  to  Wife. — 
At  common  law  the  husband  on  marriage  became  entitled 
to  all  his  wife's  personal  property  which  he  might  reduce 
to  possession,  and  entitled  to  the  rents  and  profits  of  her 
lands.^  To  this  there  w^as  an  exception  ;  and  that  was 
where  she  held  a  separate  estate  especially  restricted  to 
her  own  use  regardless  of  any  future  marriage  she  might 
make.  So  if  during  coverture  she  become  the  owner  of 
any  23ersonal  j^roperty  or  real  estate  the  same  rule  applied, 
unless  it  was  especially  restricted  to  her  separate  use  and 
benefit.  It  is,  therefore,  a  general  rule  that  the  possession 
of  the  wife  is  the  possession  of  the  husband,  and  the  evi- 
dence of  a  gift  by  him  to  her  is  not  presumed  from  her 
manual  j^ossession  of  the  subject-matter  of  the  gift, 
even  after  his  death  when  it  is  found  in  her  possession. 
Such  a  possession,  in  fact,  raises  no  presumption  of  a  gift, 
not  even  of  a  delivery.^  This  presumption,  however,  may 
be  rebutted,  by  his  declarations,  by  her  uncontradicted 
claims  of  ownership  in  his  presence,  or  by  their  joint  acts 
and  conduct.^  So  if  a  husband  purchase  an  estate  and  have 
it  conveyed  to  his  wife  the  presumption  is  that  it  is  a  gift 
to  her ;  but  this  presumption  of  a  gift  may  be  overcome  by 
proof  of  antecedent  facts  or  facts  contemporaneous  with 
the  purchase,  or  immediately  thereafter  so  as  to  be  a  part 
of  the  transaction,  of  as  explicit  a  nature  as  is  required  to 
establish  a  resulting  trust.'* 

1  Clarke  r.  King,  34  W.  Va.  631. 

2  Walter  v.  Hodge,  2  Wils.  Ch.  445 ;  Turner  v.  Brown,  6  Hun,  331.  Evidence 
that  the  husband  gave  his  wife  money  with  wliich  to  purchase  furniture,  which 
she  did,  without  further  evidence  tending  to  show  a  gift  either  of  the  money  or 
furniture  to  her  as  her  separate  property,  is  not  enough  to  show  a  gift  to  her  of 
such  furniture:  Estate  of  Ward,  2  Eedf.  251. 

3  Turner  v.  Brown,  6  Hun,  331. 

*Read  v.  Huff,  40  N.  J.  Eq.  229;  Peer  r.  Peer,  3  Stock.  fN.  J.),  432; 
Persons  v.  Persons,  25  N.  J.  Eq.  250;  Cutler  v.  Tuttle,  19  N.  J.  Eq. 
549. 


Establishment  of  Gift.  215 

247.  Parent's  Gift  to  His  Child. — The  presump- 
tion of  a  gift  by  a  parent  to  his  child  is  more  quickly 
raised  and  requires  less  joroof  than  if  they  were  strangers 
in  blood.^  The  financial  condition  of  the  parent  and  that 
of  the  child  is  often  a  potent  factor  to  raise  this  presump- 
tion ;  for  a  wealthy  parent  is  more  apt  to  make  a  gift  to 
his  child,  especially  if  the  latter  is  in  straitened  cir- 
cumstances, than  a  parent  of  the  same  temperament  of  small 
property  under  like  circumstances.  Cordiality  of  feel- 
ing existing  between  the  parent  and  child  is  also  a  factor 
in  raising  this  presumption ;  and  in  all  instances  the  age 
of  the  parent  should  be  considered  ;  for  a  parent  nearing 
the  end  of  his  life,  and  j^erceiving  that  he  is  well  enough 
provided  for  and  that  there  is  little  or  no  probability  of  his 
needing  the  property,  very  often  feels  more  disposed  to 
aid  his  child  than  one  in  the  full  vigor  of  life,  and  who 
rests  under  the  uncertainty  which  surrounds  all  mankind 
whether  he  has,  beyond  'scarcely  a  doubt,  a  sufficient 
j)rojDerty  to  keep  him  from  want  or  poverty.^ 

248.  Gift  by  Parent  to  Child  when  the  Latter 
IS  Married. — At  an  early  day  in  many  of  the  Southern 
States  it  was  the  custom  for  the  father  to  give  a  child,  when 
he  married,  a  slave ;  and  many  cases  arose  involving  the 
validity  of  transactions  of  this  kind.  As  early  as  1791  it 
was  decided  in  North  Carolina  that  if  a  father  at  the  time 
of  his  daughter's  marriage  put  a  negro  or  other  chattel 
into  the  possession  of  the  son-in-law,  it  is  in  law  a  gift,  un- 
less the  contrary  can  be  proved.  "  For  otherwise,"  said  the 
court,  "creditors  might  be  drawn  in  by  false  appearances."^ 

1  Rhods  V.  Childs,  64  Pa.  St.  18. 

'^  Francis  v.  Love,  63  Mich.  18L  Where  a  father  furnished  liis  son  money 
before  and  after  his  majority,  there  being  no  agreement  concerning  the  transac- 
tion, it  was  held  that  the  money  was  a  gift :  Thurber  v.  Sprague,  24  Atl.  Rep.  48. 

*  Farrel  v.  Perry,  1  Hay,  2. 


216  Gifts. 

Three  years  later  the  court  held  that  if  it  was  sent  to  the 
son-in-law"  any  short  time  after  the  marriage, it  is  to  be  ^re- 
sumed  prima  facie,  that  the  property  is  given  absolutely  ;" 
"  and  when  the  property  is  permitted  to  remain  in  the  pos- 
session of  the  son-in-law  for  a  considerable  length  of  time, 
it  will  be  necessary  to  prove  very  clearly  that  the  prop- 
erty was  only  lent  by  the  father,  and  that  it  was  expressly 
and  notoriously  understood  not  to  be  a  gift  at  the  time. 
The  peace  of  families,"  says  the  court,  "  and  the  secur- 
ity of  creditors,  are  greatly  concerned  in  the  law  being 
thus  settled.  Every  transaction  in  human  life  ought  to  be 
considered  under  its  ordinary  circumstances — these  will 
sufficiently  express  the  intention  of  the  j^arties,  and  gener- 
ally more  unequivocally  than  the  appointed  solemnities  of 
the  law.  This  property  was  given  in  the  manner — that  is, 
sent  with  them  on  their  going  to  house-keeping,  as  it  is 
called,  or  sent  to  them  as  soon  as  the  parent  could  make 
the  necessary  arrangements  in  his  farm  and  family  for  that 
purpose."  In  this  case  part  of  the  j^roperty  was  sent  to 
the  daughter's  house  seven  years  after  her  marriage,  and 
the  jury  found  that  there  was  a  valid  gift.^  But  this  rule 
of  j)resumption  was  not  limited  to  the  gift  of  a  slave  ;  it 
was  extended  to  any  kind  of  personal  property  delivered 
either  to  a  son  or  a  daughter  under  like  circumstances  ;  and 
even  to  instances  where  a  father,  on  the  arrival  of  his  son 
at  the  age  of  twenty-one,  or  at  years  of  discretion,  placed 
any  personal  proj^erty  in  his  son's  possession  and  per- 
mitted him  to  continue  such  possession,  for  a  considerable 
time,  and  use  it  as  his  own.^  So  where  a  father  put  his 
son  in  possession  of  a  plantation  and  slaves,  and  permitted 
him  for  three  years  to  appropriate  the  crops  to  his  own  use, 

1  Carter  v.  Rutland.  1  Hay  (N.  C),  97. 

^Hollowel  V.  Skinner,  4  Ired.  L.  165;  Stallings  v.  Stallings,  1  Dev.  (N.  C.)  Eq. 
298. 


Establishment  of  Gift.  217 

the  crop  of  the  fourth  year,  as  well  as  the  preceding  ones, 
were  considered  as  gifts  from  the  father  to  the  son  and 
liable  to  the  claims  of  the  latter's  creditors/  The  same 
rule  prevailed  in  other  States,  and  it  may  be  deemed 
one   of  universal  application.^     The  reason   for  this  as 

^  Skinner  v.  Skinner,  4  Ired.  L.  175;  State  v.  Bethune,  8  Ired.  L.  139  ;  Overby  v. 
Harrises  Ired.  Eq.  '253;  Parker  v.  Phillips,  1  Hay,  451. 

''Olds  V.  Powell,  7  Ala.  652;  Teague  v.  Griffin,  2  N.  &  McC.  (S.  C.)  93; 
Banks  v.  Hatton,  1  Kott.  &  McC.  (S.  C.)  221 ;  Brashears  v.  Blassingame,  1 
Kott.  &  McC.  (S.  C.)  223 ;  Davis  v.  Davis,  1  Nolt.  &  McC.  (S.  C.)  224 ;  S.  C.  1 
Brev.  371;  Johnston  v.  Dilliard,  1  Hay  (S.  C),  232;  Archer  v.  M'Fall, 
Rice  L.  (S.  C),  73;  Lark  v.  Cunningham,  7  Rich.  L.  57;  Whitesides  t).  Poole, 
9  Rich.  L.  68 ;  Henson  v.  Kinard,  3  Strobh.  Eq.  371;  Richmond  r.  Yongue,  5 
Strobh.  L.  46;  Raiford  v.  French,  11  Rich.  L.  367;  Sims  v.  Saunders,  Harp. 
(S.  C.)  374;  Nichols  v.  Edwards,  16  Pick.  62;  Perry  v.  Graham,  18  Ala.  822. 
"  In  order  to  warrant  the  presumption  of  a  gift  in  such  a  case,  it  is  not  necessary 
that  the  property  be  sent  to  the  residence  of  the  married  pair ;  it  is  enough  if  it 
be  delivered  to  the  husband,  or  suffei-ed  to  go  into  their  possession.  So  property 
in  a  slave,  permitted  by  parents  to  go  into  possession  of  a  daughter,  on  her  mar- 
riage, rests  in  the  husband  of  the  daughter.  In  Davis  v.  Duncan,  1  McC.  (S.  C.) 
213,  it  was  held  that  where  there  was  an  acceptance  and  continued  possession  of 
property  wliich  a  parent  permitted  to  go  into  the  possession  of  his  son  or  daugh- 
ter, upon  his  or  her  marriage,  it  may,  by  lapse  of  time  be  construed  into  a  gift, 
though  originally  declared  to  be  a  loan.  And  in  Keene  v.  Macey,  4  Bibb.  35,  it 
■was  decided,  that  if  a  father  delivers  slaves  to  his  son-in-law  upon  marriage,  with- 
out avowing  the  purpose  of  the  delivery,  and  the  son-in-law  retains  possession  for 
five  years,  it  should  be  left  to  the  jury  to  determine  whether  it  was  intended  as  a 
gift  or  a  loan:"  Hooe  v.  Harrison,  11  Ala.  499;  Miller  v.  Eatman,  11  Ala.  609; 
Gillespie  v.  Burleson,  2S  Ala.  551 ;  Hill  r.  Duke,  6  Ala.  259 ;  O'Xeil  v.  Teague,  8 
Ala.  345;  Norris  v.  Bradford,  4  Ala.  203;  Rumbly  v.  Stainton,  24  Ala.  712; 
Moore  v.  Dawney,  3  H.  &  M.  (Va.)  127 ;  Bell  v.  Strother,  3  McC.  207.  In  this 
last  case  it  is  said  tliat  the  time  of  the  delivery  is  immaterial  so  far  as  it  tends  to 
raise  the  presumption  of  a  gift :  De  GrafTenreid  v.  Mitchell,  3  McC.  506  ;  Keaton 
V.  Miller,  38  Miss.  630 ;  Whitfield  v.  Whitfield,  40  Miss.  352  ;  Henry  v.  Harbison, 
23  Ark.  25  ;  Smith  v.  Montgomery,  5  T.  B.  Mon.  502.  In  this  last  case  proofs 
of  gifts  to  his  other  children  at  their  marriage  was  lield  to  strengthen  the 
presumption  of  a  gift.  Proof  of  the  donor  having  sent  a  slave  to  tlie 
home  of  liis  son-in-law  raises  the  presumption  of  a  gift:  Stump  v.  Roberts, 
Cooke  (Tenn.),  350;  Wade  v-  Green,  3  Humph.  547.  The  secret  inten- 
tion of  the  father  to  only  make  a  loan  cannot  invalidate  the  gift:  Owen  v. 
Tankersley,  12  Tex.  405.  The  purchase  of  land  by  a  father  and  its  conveyance 
to  such  child  instead  of  to  the  father  raises  the  presumption  of  a  gift:  Vanzaut 
V.  Davies,  6  Ohio  St.  52. 

In  Missouri  the  rule  is  that  sending  property  to  a  married  daughter's  home 
shortly  after  her  marriage  is  evidence  from  which  the  court  or  jury  may  find  that 


218  Gifts. 

given  in  the  language  of  the  re^Dorted  cases  is  that  any 
other  rule  would  operate  as  a  fraud  upon  creditors  of  the 
donee,  who  were  deceived  by  the  apparent  ownership  of 
property,  in  advancing  credit  to  him ;  and  as  one  of  two 
innocent  parties  must  suffer,  he  who  had  voluntarily  brought 
about  this  condition  of  affairs  must  bear  the  loss.  Many 
of  the  cases  arose  in  contests  between  creditors  of  the  do- 
nee and  the  donor  over  the  ownership  of  property,  and 
consequently  this  rule  had  an  equitable  application.  But 
in  time  the  rule  was  applied  to  contests  between  the  donor 
and  donee,  and  enforced,  though,  perhajDS,  not  so  rigorously 
as  between  the  donor  and  the  creditors  of  the  donee  ;  and 
instances  of  transactions  between  the  donor  and  donee 
have  probably  been  held  not  to  amount  to  gifts,  when  as 
between  the  donor  and  the  creditors  of  the  donee  it  would 
be  so  held  on  the  principle  of  estoppel.^  The  rule  has  met 
with  a  vigorous  protest,  upon  the  ground  that  it  prevented 
dealings  between  parent  and  child  in  the  way  of  aid  by 
loans  of  the  use  of  personal  j)roperty,  and  regret  has  been 
expressed  that  it  ever  obtained  a  footing  ;  ^  and  it  has  been 
held  that  the  rule  does  not  apply  to  a  transaction  between 
persons  not  bearing  the  relation  of  parent  and  child,  as 
the  case  of  a  stej^-father's  allowing  a  slave  to  go  into  the 
possession  of  his  step-child.^  It  is  manifest  that  where 
the  subject-matter  of  the  gift  is  trifling  the  I'cason  for  the 
rule  that  creditors  of  the  donee  were  deceived  by  a  show 
of  property  in  the  donee,  and  thereby  induced  to  give 

there  was  an  actual  gift :  Jones  v.  Briscoe,  24  Mo  493;  Mulliken  v.  Greer,  5  Mo. 
489 ;  Beale  v.  Dale,  25  Mo.  301 ;  Fatheree  v.  Fletclier,  31  Miss.  265 ;  Pendleton  v. 
Mills,  Geo.  Dec.  pt.  166  ;  Falconer  v.  Holland,  o  Stn.  &,  M.  689  ;  Carter  v.  Buchanan, 
9  Geo.  539 ;  Lockett  v.  Mims,  27  Geo.  207  ;  Bell  v.  McCawley,  29  Geo.  355  ;  Rich 
V.  Mobley,  33  Geo.  85  ;  Butler  v.  Hughes,  35  Geo.  200.  Contra,  Moseby  v.  Williams, 
o  How.  (Miss.)  520. 

1  Burgess  v.  Chandler,  4  Rich.  L.  170 ;  Archer  v.  M'Fall,  Rice  L.  (S.  C)  73. 

^  Henson  v.  Kinard.  3  Strobh.  Eq.  370. 

3  Wills  V.  Snelling,  6  Rich.  L.  280. 


Establishment  of  Grift.  219 

him  credit,  can  have  little  or  no  application ;  nor  can  mere 
volunteers  claim  the  benefit  with  the  same  weight  of  claim 
that  an  actual  creditor  could.^  But  the  presumption  of  a 
gift  arising  from  the  act  of  a  father  placing  property  in  a 
child's  possession  under  the  conditions  discussed  herein 
may  be  rebutted ;  and  one  of  the  most  usual  means  of  re- 
butting it  is  by  the  declarations  of  the  donor  and  donee 
when  the  property  was  delivered,  his  declarations  prior 
thereto,  his  subsequent  declarations  made  in  the  presence 
of  the  donee  and  sanctioned  by  him,  and  the  admissions 
of  the  donee  against  his  interest,  whether  the  contest  is 
between  the  donor  and  donee  or  between  the  former  and 
the  latter's  creditors.^  When  the  donee  has  shown  enough 
of  the  transaction  to  raise  the  presumption  of  a  gift,  the 
burden  is  upon  the  donor  to  rebut  this  presumption  ;  and 
for  this  purpose  he  may  prove  his  declarations  which 
form  a  part  of  the  res  gestce  ;  his  subsequent  declarations 
in  the  presence  of  the  donee  when  assented  to  by  him,  and 
his  declarations  j)rior  thereto  made  in  the  presence  of  the 
donee,  and  even  those  not  made  in  his  presence.^  He  may 
also  show  any  other  facts  that  tend  to  rebut  the  presump- 
tion, such  as  tend  to  convert  the  transaction  into  a  loan, 
or  contract  of  sale,  or  a  bailment.*   Where  the  contest  was 


^  Wills  V.  Snelling,  supra  ;  Ramsey  v.  Joyce,  McM.  Eq.  226. 

^Rumbly  v.  Stainton,  2-1  Ala.  712.  Where  the  declarations  show  no  intent  to 
•give,  and  a  deed  was  afterward  executed  to  carry  out  the  conditions  upon  which 
tlie  delivery  was  made,  the  prior  oral  declarations  were  held  admissible :  O'Neil 
V.  Teagne,  8  Ala.  34i ;  Keene  v.  Macey,  4  Bibb.  35. 

^  Smith  V.  Montgomery,  5  T.  B.  Men.  502. 

*Hill  V.  Duke,  6  Ala.  2o9 ;  Falconer  v.  Holland,  5  Sm.  &  M.  689;  Freeman  v. 
Flood,  16  Geo.  528.  A  receipt  given  by  the  donee  is  admissible  as  a  declaration 
against  interest:  Nichols  r.  Edwards,  16  Pick.  62.  Ten  years'  possession  must  be 
explained,  it  was  held,  by  satisfactory  proof  that  it  was  notoriously  understood 
not  to  be  a  gift  at  the  time ;  and  even  then  it  is  not  too  much  to  say  that  a  strong 
presumption  arises,  which  will  warrant  the  inference  of  a  subsequent  gift,  when 
the  contract  is  between  a  creditor  and  the  donor  :  Hill  v.  Duke,  supra.  A  subse- 
quent will  in  accord  with  the  declarations  made  at  the  time  of  the  delivery  of  the 


220  Gifts. 

between  the  donor  and  a  creditor  of  tlie  donee  over  a  slave 
sent  by  the  donor  to  his  son-in-law's  house  shortly 
after  his  marriage,  it  was  said  that  anything  that  would 
make  the  transaction  less  than  a  gift  *'  must  be  made 
known  to  persons  who  give  credit  subsequent  to  the  pos- 
session." ^  If  the  gift  is  out  of  all  proportion  with  the 
donor's  property  and  an  unusual  one  under  the  circum- 
stances that  induced  the  donor  to  make  it,  or  if  some  ele- 
ment of  fraud  is  shown  in  the  transaction,  that  may  be 
considered  in  rebutting  the  presumption  of  a  gift,  and  may 
be  even  sufficient  to  overcome  such  presumption.^ 

249.  Comments  Upon  Presumption  Arising  from 
Delivery  of  Property  by  a  Parent  to  His  Child. — 
The  cases  cited  in  the  foregoing  section  relate  almost  en- 
tirely to  gift  of  slaves  ;  a  few,  however,  relate  to  other 
gifts,  usually  of  household  furniture.  So,  too,  they  al- 
most entirely  relate  to  gifts  by  a  parent  to  a  child  on  its 
marriage — usually  to  a  daughter  ;  yet  one  or  two  relate 
to  a  gift  made  to  a  child  on  reaching  its  majority.  The 
rule  deducible  from  them  had  its  origin  in  a  once  well- 
established  practice  prevalent  in  the  Southern  States — of 
giving  to  a  newly-married  child  a  slave  as  a  marriage 
portion  ;  and  the  courts  in  declaring  that  the  sending  of 
a  slave  by  the  father  to  his  newly-married  child's  home 
will  be  regarded  as  a  gift,  if  unexplained,  only  followed 
up   a  much  practiced  habit  of  that  part  of  our  country. 

property  and  against  the  claim  of  gift  Is  admissible :  Miller  v.  Eastman,  11  Ala. 
609  ;  Stewart  v.  Cheatham,  3  Yerg.  59.  Admissions  of  donee  :  Bell  v.  McCawley, 
29  Geo.  355 ;  Rich  v.  Moblev,  33  Geo.  85. 

'  Burgessv.  Chandler,  4  Rich.  (S.  C.)  L.  170 ;  Ford  v.  Aiken,  1  Strobh.  L.  93;  Byrd 
V.  Ward,  4  McC.  228.  Tlie  creditor  need  not  sliow  that  the  possession  of  the  do- 
nee was  adverse  to  that  of  the  donor  when  he  seeks  to  bind  the  latter  on  tlie 
ground  that  he  had  given  the  donee  the  appearance  of  being  the  owner  of  prop- 
erty :  Whitesides  v.  Poole,  9  Rich.  L.  68. 

^  Moore  v.  Dawney,  3  H.  &  M.  127. 


Establishment  of  Gift.  221 

And  by  reason  and  analogy  it  was  aj^plied  to  other  prop- 
erty suitable  for  a  parent  to  give  to  a  child  at  such  a 
time.  It  is  only  a  reasonable  presumption  raised  by  our 
every-day  experience  ;  and  the  courts  in  adopting  such  a 
rule  only  showed  their  attention  to  the  every-day  affairs  of 
life,  and  applied  a  rule  based  on  common  sense  in  carry- 
ing out  the  intention  of  the  donor  and  donee.  But  in  the 
South  the  gift  of  slaves  became  one  of  fraud  so  far  as  cred- 
itors of  the  donor  and  donee  were  concerned  ;  for  if  the 
donee  should  become  indebted  and  be  about  to  lose  the 
slave,  the  father  would  claim  it  as  his  own  and  the  son 
would  acquiesce  ;  and  so  when  a  creditor  of  the  donor 
levied  on  the  slave  that  was  in  fact  his  slave,  the  donee 
would  claim  it  and  the  donor  would  acquiesce  in  the 
claim.  To  remedy  this  defect,  statutes  were  passed  re- 
quiring all  gifts  of  slaves  to  be  by  deed,  and  rendering  the 
deed  either  inoperative  or  void  against  creditors  of  the 
donor  until  recorded  in  some  office  of  public  record.  In 
some  instances  the  statute  made  the  gift  void  even  as  be- 
tween the  donor  and  donee.  Hence,  in  latter  years 
of  slavery  these  kind  of  cases  were  less  frequently  before 
the  courts  ;  and  those  cited  are  nearly  all  of  the  first 
quarter  of  the  present  century.  But  the  vital  question 
with  us,  does  the  principle  on  which  they  depend  now 
apply  to  gifts  to  a  newly-married  child  ?  or  to  any  child 
of  the  donor  ?  There  is  no  reason  why  they  should  not. 
The  principle  running  through  them  has  been  applied  to 
gifts  of  personal  property,  and  to  a  child  arriving  at  his 
majority  ;  and  it  is  just  as  applicable  to  a  child  in  after 
life  living  apart  from  his  father  or  mother  as  to  a  child 
recently  married.  The  only  difference  is  that  the  claim 
of  a  gift  to  a  child  in  after  life  may  be  more  easily  re- 
butted than  the  claim  that  a  transaction  immediately  after 
marriage  shows  a  gift ;  and  in  such  an  instance  common 


222  Gifts. 

experience  is  only  be  drawn  upon.  In  one  case  cited 
in  the  foregoing  section  a  gift  made  eight  years  after  the 
marriage  of  the  child  was  upheld.  In  some  of  the  cases 
the  qualification  is  added  to  the  statement  of  the  general 
rule  "  and  suffered  to  remain  in  the  possession  of  the  child 
for  a  long  period,"  generally  enumerating  several  years  ; 
but  these  expressions  are  only  used  because  the  facts 
occur  in  the  case  ;  and  while  the  permitting  of  the  subject- 
matter  of  the  gift  to  remain  a  period  of  several  years  will 
add  to  the  presumiDtion  of  a  gift  and  require  stronger 
evidence  of  rebuttal  to  overcome  that  presumption,  yet 
such  a  period  of  time  is  not  indispensable,  and  the  absence 
of  the  period  of  time,  or  the  fact  of  only  a  short  period,  is 
simply  a  circumstance  tending  to  weaken  the  presumption 
of  an  actual  gift. 

250.  Presumptioi^  Arising  from  Parent  Advanc- 
ing Money  to  His  Child — Loan. — If  a  parent  advances 
money  to  a  child,  it  is  supposed  to  be  by  way  of  a  gift 
and  not  a  loan.^  The  force  of  this  presumption  is  not 
weakened  by  the  fact  that  the  child  gave  to  his  parent  a 
statement  in  the  form  of  an  account  of  the  several  sums 
of  money  so  given  him.^  Where  it  was  shown  that  a 
father  had  formerly  given  his  children  a  like  gift  on  their 
marriage,  the  father's  declarations,  after  making  such 
gifts  to  his  other  children,  that  he  would  not  again  give 
away  a  slave  to  his  remaining  daughters  on  their  mar- 
riage, but  whatever  advancement  he  might  make  should 
be  a  loan  were  admitted  to  rebut  the  presumption  of  a 
gift.^ 

1  Hick  V.  Keats,  4  B.  &  C.  69  ;   Whitfield  v.  Whitfield,  40  Miss.  352 ;  Swartz  v. 
Hazlett,  8  Cal.  118 ;  Smith  v.  Montgomery,  5  T.  B.  Men.  502. 

2  Johnson  v.  Ghost,  11  Neb.  414. 

^  Smith  V.  Montgomery,  5  T.  B.  Mon.  502;  Lockett  v.  Mims,  27  Geo.  207. 
Presumption  that  gift  is  a  satisfaction  of  a  debt,  when :  McClure  v.  Miller,  1 
Bail.  Eq.  107. 


Establishment  of  Gift.  223 

251.  Peesumptiox  of  Gift  Akisixg  from  Peoof  of 
Possession. — Proof  of  manual  j)ossession  in  the  donee  is 
always  an  element  in  his  favor  ;  and  if  he  acquired  that 
possession  in  connection  with  words  of  gift  expressing  an 
intent  to  give,  it  raises  a  very  strong  presumption  of  a  gift, 
and  is  very  often  the  turning  point  in  the  transaction. 
But  manual  possession  in  the  donee  is  always  subject  to 
explanation  ;  and  its  force  in  upholding  the  claim  of  the 
donee,  that  the  transaction  amounted  to  a  gift,  is 
greatly  weakened  if  the  donor  is  dead  and  the  donee 
had  ready  access  to  his  property  and  effects.^  This 
is  readily  perceived  where  the  donor  and  donee  main- 
tained fiduciary  relations  toward  each  other,  or  resided 
together  and  the  article  is  such  as  is  usually  kept  in  resi- 
dences or  living  rooms,  or  in  offices  which  they  jointly 
occupied.  Possession  in  a  stranger,  not  inhabiting  the 
same  house  and  not  jointly  occupying  in  business  the 
same  store  or  office  with  the  donor,  when  words  of  gift 
are  shown,  is  much  stronger  evidence  of  a  gift  than  proof 
of  possession  when  the  donor  and  donee  maintained  close 
personal  relations  and  actual  business  contact  in  the 
every-day  affairs  of  life.  Thus  where  a  bond  and  mort- 
gage were  found,  after  the  mortgagor's  death,  in  a  tin  box 
of  his,  containing  j)aid  notes,  papers  of  old  dates,  bills  of 
goods,  old  outlawed  notes  due  him,  and  other  miscel- 
laneous paj)ers  ;  and  there  was  proof  of  a  declared  inten- 
tion of  the  mortgagee  to  give  the  bond  and  mortgage  to 
his  daughter  (the  wife  of  the  mortgagor),  it  was  held 
that  in  the  absence  of  any  evidence  casting  suspicion  upon 
the  bona  fides  of  the  possession  of  the  securities  of  tlie 
mortgagor,  at  the  time  of  his  death,  such  possession  was 
presumptive  evidence  of  a  gift  to  his  wife.^     Possession  in 

'  Conklin  v.  Conklin,  20  Hun,  278  ;  Grey  v.  Grey,  47  N.  Y.  552. 
^Hackney  r.  Vrooman,  62  Barb.  650  ;  Shower  v.  Pilck,  4  Exch.  478.     Posses- 
sion of  property  is  presumptive  of  title  in  the  possessor.     If  an  unmarried  son 


224  Gifts. 

the  donee  for  a  long  period  of  time  raises  a  stronger  pre- 
sumption of  gift  than  for  a  short  time.  Thus  it  was  said 
that  seven  years'  possession  of  a  slave  by  the  donee, 
a  stranger  to  the  donor,  unexplained,  would  give  him 
title.' 

252.  Donee's  Access  to  Donor's  Papees  and  Secuei- 
TiES. — The  right  of  access  the  donee  may  have  had  to  the 
donor's  papers  or  securities,  when  either  is  the  subject- 
matter  of  the  gift,  must  always  be  considered,  especially 
in  a  donatio  mortis  causa.  In  such  instances  the  oppor- 
tunity for  fraud,  by  gaining  possession  of  the  subject-mat- 
ter, is  always  quite  easy ;  and  thereby  one  of  the  most 
onerous  burdens  of  establishing  a  gift,  by  proA^ng  a  de- 
livery, is  greatly  aided.  In  such  an  instance  the  fact  of 
230ssession  should  have  little  weight.^ 

resides  with  his  fatlier,  the  presumption  is  that  the  property  on  the  homestead 
belongs  to  the  father,  and  if  the  father  lives  with  his  son,  the  presumption  is 
the  other  way.  If  the  possession  is  joint,  the  presumption  is  in  favor  of  the  party 
who  exercises  principally,  if  not  exclusively,  acts  of  individual  control  and  do- 
minion over  the  property:  Reid  v.  Butt,  25  Ga.  28. 

^  Bell  V.  Strolher,  3  McC.  207.  The  finding  of  the  article  claimed  by  way  of 
gift  in  the  possession  of  the  donor  at  his  death  is  very  strong  evidence  against  the 
claim  of  a  gift:  Antrobas  «.  Smith,  12  Ves.  39.  See  Shower  v.  Pilck,  4  Exch. 
478.  Replevin  of  a  church  meeting-house  bell.  Proof  by  the  plaintiff  that  the 
bell  and  frame  had  been  in  their  possession  for  several  years,  and  liad  been  used 
by  them  for  parish  purposes.  Proof  by  the  defendant  that  it  hud  been  purchased 
by  subscription,  the  defendant  and  others  being  subscribers,  and  was  by  them 
hung  up  in  the  meeting-house  by  the  plaintiff's  permission.  Proof  also  that  at  a 
meeting  of  the  parish  it  was  voted  "  that  the  subscribers  for  a  bell  have  leave  to 
place  the  same  in  a  convenient  place  in  the  meeting-house  to  be  rung."  It  was 
also  voted  that  tlie  bell  should  be  the  property  of  tlie  subscribers,  subject  to  their 
control  and  direction.  It  was  held  that  these  votes  rebutted  the  presumption  of 
a  gift:  Fourth  Parish  v.  Root,  18  Pick.  318.  A  note  indorsed  to  the  donee,  or  in 
blank,  when  found  in  his  possession  raises  the  presumption  of  a  gift:  Breier  v- 
Weicr,  33  111   App.  38^. 

-  Shirley  v.  Whitehead,  1  Ired.  Eq.  130  ;  Cummin.gs  v.  Meaks,  2  Pitts.  490 ;  S.  C. 
11  Pitts.  L.  J.  291  ;  Stevens  t.  Stevens.  2  Redf.  265.  This  is  especially  true  where 
the  executor  or  administrator  is  the  donee  in  the  case  of  a  donatio  mortis  causa: 
Parkin  v.  Day,  6  Wkly.  Dig.  113. 


Establishment  of  Gift.  225 

253.  Peestjmptiox  that  Gift  was  a  Payment  of  a 
Debt. — If  a  person  indebted  pay  money  to  his  creditors 
without  specifying  for  what  purjDose,  the  presumption  is 
that  it  was  intended  as  a  payment  of  the  debt  between 
them,  especially  if  the  amount  of  the  debt  and  the  pay- 
ment are  equal ;  but  this  presumption  does  not  arise  if 
the  person  paying  expressly  declared  it  to  be  a  gift.^ 

254.  Evidence  of  Acceptance — Presumption. — If 

the  gift  is  of  value,  the  law  presumes  an  acceptance  ;  in 
fact,  the  law  in  all  instances  presumes  an  acceptance  if  the 
donee  is  informed  of  the  gift,  even  of  a  conditional  gift.^ 
The  donee  may  testify  in  direct  terms  that  he  accepted  the 
gift ;  and  he  may  sIioav  a  subsequent  demand  of  the  prop- 
erty given,  and  efforts  to  obtain  its  possession,  even  if  it 
should  .come  into  the  hands  of  the  donor's  executor.^ 

255.  Sanity  of  Donor. — In  claiming  title  to  property 
by  gift  the  donee  is  not  required  to  show  that  the  donor 
was,  at  the  time  of  the  gift,  of  sound  disposing  mind  and 
memor}^  nor  that  it  was  his  free  will  and  act.  Insanity 
and  undue  influence  are  matters  of  defence.* 

256.  Equity  Will  Not  Aid  an  Imperfect  Gift — 
Specific  Performance. — It  is  simply  reiteration  of  what 
has  elsewhere  been  stated,  that  a  court  of  equity  will  not 
aid  an  imperfect  gift.     The  donor  must  himself  have  per- 

'  McClure  v.  Miller,  Bail.  Ch.  107. 

'  Thouvenin  v.  Rodrigues,  24  Tex.  468;  Love  r.  Francis,  63  Mich.  181.     See 
Section  79. 

■•'  Hunter  v.  Hunter,  19  Barb.  631. 

*  Bedell  v.  Carll,  33  N.  Y.  581.  Where  the  plaintifF  claimed  by  gift  and  the 
defendant  bv  a  subsequent  will,  testimony  to  show  the  insanity  of  the  common 
donor  was  held  to  be  irrelevant :  Bryant  v.  Ingraham,  16  Ala.  116.  But  if  there 
be  an  interval  nf  time  between  the  making  of  the  gift  and  the  will,  during  which 
the  donor  had  actually  gone  insane,  and  so  remained  at  the  time  of  making  the 
will,  there  is  certainly  no  reason  why  that  fact  cannot  be  sliown. 
15 


22G  Gifts. 

fected  tlie  gift,  as  far  as  within  him  lay  the  possibility  to 
do  so,  before  the  donee  can  come  into  court  and  success- 
fully claim  protection  of  his  alleged  property  in  the  gift.^ 

257.  Defendant  May  Show  Gift  Invalid. — When- 
ever the  donee  brings  an  action  concerning  the  subject- 
matter  of  the  gift  and  asserts  that  he  is  the  owner 
thereof,  the  defendant,  whether  the  owner,  the  donor's 
bailee,  or  even  a  claimant  without  right  as  against  the 
donor,  may  show  that  the  intended  gift  is  invalid.^ 

258.  Statute  of  Limitations. — Gifts  that  are  invalid 
may  be  perfected  by  long  acquiescence  of  the  donor,  or  by 
a  claim  by  the  donee  of  the  right  to  the  property  given, 
even  though  the  claim  is  made  as  such  donee.  The  fact 
that  he  claims  as  donee  does  not  prevent  his  claiming 
title  by  adverse  possession.^ 

259.  Gift  to  a  Class — To  Whom  as  Donees. — Prop- 
erty may  be  given  by  will  to  be  distributed  among  a 
class  of  persons  at  a  future  time,  or  on  the  happening  of 
a  certain  contingency.  In  such  an  instance  all  the  donees 
who  come  into  existence  before  the  time  or  happening  of 
the  event  are  let  in,  and  none  except  those  answering  the 
description  in  the  will  can  take.  This  is  because  the  will 
speaks  at  the  time  of  the  testator's  death,  and  those  who 
answer  the  description  of  the  legatees  at  that  time  will 
take  unless  a  contrary  intention  appears.     Such  is  not, 

^  Upon  this  subject  there  is  abundance  of  authority:  Lee  v.  Magrath,  L.  E. 
10  Jr.  45;  S.  C,  p.  313;  Robson  v.  Jones,  3  Del.  Ch.  51.  Equity  will  not  even 
aid  to  establisli  a  trust:  Bayley  v.  Boulcott,  4  Russ.  345 ;  Glass  v.  Burt,  8  On- 
tario, 391;  Smith  v.  Dorsey,  38  Ind.  451;  Houghton  v.  Houghton,  34  Hun,  212; 
Brownlee  v.  Fenwick,  103  Mo.  420 ;  Anderson  v.  Scott,  94  Mo.  637. 

«  Jnckson  v.  Twenty-third  St.  Ey.  Co.,  88  N.  Y.  520. 

2  Sumner  v.  Murphy,  2  Hill  L.  487  ;  M'Elwee  v.  Martin,  2  Hill  L.  496  ;  Pate 
V.  Barrett,  2  Dana,  426. 


EstabUshnent  of  Gift.  227 

however,  tHe  case  with  a  deed  of  gift  or  gift  inter  vivos  ; 
for  the  deed  or  oral  gift  speaks  at  the  time  when  made, 
and  the  donees  under  it  must  be  such  as  answer  the  de- 
scrij^tion  at  that  time.^ 

260.  Denying  Donor's  Title. — The  donor  cannot  set 
up  as  a  defense  that  at  the  time  he  had  no  title  to  the 
subject-matter  of  the  gift.^ 

261.  Administrator  or  Executor  Not  Entitled 
TO  THE  Possession. — Neither  the  administrator  nor 
the  executor  is  entitled  to  the  possession  of  the  subject- 
matter  of  the  gift,  even  of  a  donatio  mortis  causa.  He  has 
no  title  in  or  to  it  unless  the  property  is  necessary  to  pay 
creditors  of  the  donor.  If  the  administrator  take  posses- 
sion of  the  gift,  the  donee  may  maintain  trover  against 
him,  after  demand,  for  the  property  ;  ^  and  if  he  has  con- 
verted it  into  assets  for  the  estate,  an  action  for  its  value 
lies  against  him  in  his  representative  capacity.* 

262.  Validity  of  Gift  when  Creditors  Not  Con- 
cerned— Gift  Between  Kin. — When  the  rights  of 
creditors  are  not  involved  and  the  gift  is  within  the 
family,  the  rules  as  to  the  validity  of  a  gift  are  not  so 
rigidly  adhered  to ;  and  the  gift  will  be  upheld  though 
the  evidence  be  meagre.^  It  is  quite  evident,  however, 
that  this  very  just  rule  has  not  been  recognized  by  many 

>M'Meekin  v.  Erumraet,  2  Hill  Ch.  638. 

^Rinker  v.  Rinker,  20  Ind.  185 ;  Adams  r.  Lansing,  17  Cal.  G29. 

'Marsh  v.  Fuller,  18  N.  H.  360;  Lord  v.  Vreeland,  24  How.  Pr.  316;  Estate 
of  Chalker,  5  Redf.  480;  Van  Slooten  v.  Wheeler,  21  N.  Y.  Supp.  336. 

*Mann  v.  Mann,  2  Rich.  L.  123.  If  ihe  maker  of  a  note  pay  it  to  the  adminis- 
trator, whose  decedent  had  made  it  a  donatio  mortis  causa,  without  the  production 
of  the  note,  he  cannot,  when  sued  by  tlie  donee,  set  up  payment  to  the  administra- 
tor :  House  V.  Grant,  4  Lans.  296. 

^  Fowler  v.  Lockwood,  3  Redf.  465.  See  Kurtz  v.  Smither,  1  Dem.  (N.  Y.)  399 ; 
Harris  v.  Hopkins,  43  Mich.  272. 


228  Gifts. 

of  the  courts,  especially  those  of  England,  until  a  late 
clay.  In  scores  of  instances  courts  have  required  of  a 
wife  or  a  child  as  strict  proof  as  if  they  were  strangers  to 
the  donor ;  and  there  are  many  instances  in  which  they 
have  regarded  the  gifts  with  suspicion,  because  of  the  close 
intimacy  existing  between  the  donors  and  donees.  Such 
a  rule  more  often  tends  to  subvert  justice  than  to  i:)romote 
it,  and  more  often  to  thwart  the  intentions  of  donors  than 
to  consummate  them.^  One  who  purchases  the  subject- 
matter  of  the  gift  from  tlie  donor,  with  a  knowledge  that 
the  donor's  title  has  been  rendered  doubtful  by  his  attempt 
to  give  it,  is  in  no  better  position  than  the  donor  himself 
when  the  validity  of  the  transaction  is  attacked.^  In  all 
contests  of  this  character,  the  donee  cannot  pose  as  an  in- 
nocent purchaser^  unless,  perhaps,  he  has  bestowed  labor  or 
money  upon  the  article  given  to  the  extent  that  to  require 
him  to  relinquish  it  would  entail  upon  him  a  loss  far  be- 
yond the  benefit  he  has  received  by  the  use  of  the  prop- 
erty. If,  however,  all  the  forms  of  a  valid  gift  have  been 
observed,  the  purchaser,  however  innocent,  cannot  claim 
the  subject-matter  of  the  gift  from  the  mere  fact  that  he 
was  deceived  by  appearances."^ 

263.  When  Title  Passes. — We  have  elsewhere  dis- 
cussed the  question,  when  does  the  title  pass  in  a  gift  mortis 
causa  f  In  the  case  of  a  gift  inter  vivos  the  cases  are  not 
one  as  to  the  time  the  title  passes.     In  England  the  ques- 

^See  Boudreau  v.  Boudreau,  45  111.  480,  where  "reasonably  strict  proof  of  the 
gift"  was  required. 

^  Barker  v.  Frye,  75  Me.  29. 

^Swartz  V.  Hazlett,  8  Cal.  118;  First  Nat.  Bank  r.  Wood,  128  N.  Y.  35;  Gillan 
V.  Metcalf,  7  Cal.  137;  Hatch  v.  Lamos,  65  N.  H.  1. 

*  Turner  v  Thurmond,  28  Geo.  174;  Bell  v  McCawley,  29  Geo.  355;  Landrum 
V.  Russell,  29  Geo  405;  Joeckel  v.  Joeckel,  56  Wis.  436;  Moultrie  v.  Jennin^^s, 

2  McMull.  508  ;  Cummings  v.  Coleman,  7  Eich.  Eq.  509 ;  Caston  v.  Cunningham, 

3  Strob.  L.  59. 


EstahUshment  of  Gift.  229 

tion  was  considered  at  considerable  length.  There  an 
aged  lady  caused  a  large  amount  of  consols  to  be  trans- 
ferred into  the  joint  names  of  herself  and  her  godson,  do- 
ing so  with  the  express  intention  that  he,  in  the  event  of 
surviving  her,  should  have  them  for  his  own  benefit,  but 
that  she  should  have  the  dividends  during  her  life.  At 
the  time  she  was  warned  that  if  she  did  so  she  could  not 
revoke  the  legal  effect  of  the  transaction.  The  first  notice 
the  godson  had  of  the  gift  was  two  years  afterward,  when 
her  solicitors  wrote  him  claiming  to  have  the  fund  retrans- 
ferred  to  the  donor.  The  court  held  that  when  the  trans- 
fer was  made  the  legal  title  vested  in  the  donee,  notwith- 
standing his  ignorance  of  the  gift  and  the  absence  of  his 
assent,  and  that  the  gift  was  valid  and  irrevocable.  In 
this  case  the  transfer  was  ui^on  the  books  of  the  Bank  of 
England.  "  If  the  matter  were  to  be  discussed  now  for 
the  first  time,"  said  Lord  Holsbury,  "  I  think  it  might 
well  be  doubted  whether  the  assent  of  the  donee  Avas  not 
a  preliminary  to  the  actual  j^assing  of  the  property.  You 
certainly  cannot  make  a  man  accept  as  a  gift  that  which 
he  does  not  desire  to  possess.  It  vests  only  subject  to  re- 
pudiation." ^  There  are  cases,  however,  which  hold  that 
the  title  does  not  pass  until  the  donee  assents  to  the  gift, 
when  it  is  placed  in  the  hands  of  a  third  person.^  If  the 
gift  is  made  directly  to  the  donee,  then  the  title  does  not 
pass  until  he  assent ;  and  no  title  can  pass  until  there  has 
been  a  delivery,  or  the  donee  has  constituted  himself  a 
trustee  for  the  donor."^ 

'.Standing  v.  Bowring,  L.  R.  31  Ch.  Dlv.  2S2 ;  reversing  27  Ch.  Div.  341 ;  But- 
ler and  Baker's  Case,  3  Coke  Rep.  26  b  ;  Thompson  v.  Leach,  2  Vent.  198 ;  Sig- 
gers  V.  Evans,  5  E.  &  B.  367  ;  Smith  v.  Wheeler,  1  Vent.  12S ;  Small  v.  Marwood, 
9  B.  &  C.  300.  See  Hurlbut  v.  Hurlbut,  49  ilun,  189;  Thomas  v.  Tliomas,  107 
Mo.  459 ;  Barnura  v.  Reed,  130  111.  388. 

2  Thompson  v.  Gordon,  3  Strob.  L.  196.  Under  the  head  of  Revocation  will  be 
found  cited  a  number  of  cases  to  this  effect. 

^Donatio  mortis  causa.    See  Section  46. 


230  Gifts. 

264.  Competency  of  Donee  as  a  Witness. — A  do- 
nor, in  an  action  between  the  donee  and  creditors  of  the 
donor  involving  the  validity  of  the  gift,  is  a  competent 
witness,  and  he  is  not  disqualified  on  account  of  interest.^ 
So  the  husband  of  the  donee  has  been  held  competent  to 
show  that  the  transaction  with  his  wife  was  a  loan 
and  not  a  gift  under  like  circumstances.^  And  a  wife, 
it  has  been  held,  is  a  competent  witness  in  an  action  against 
her  husband's  executor,  to  prove  a  parol  gift  by  him,  the 
dissolution  of  the  marriage  by  death  removing  the  objec- 
tion arising  out  of  the  conjugal  relation.^  But  the  weight 
of  authority,  both  in  jDrincij^le  and  number  of  cases,  is 
that  she  is  not  a  comj^etent  witness.*  So  under  a  statute 
providing  that  no  party  to  an  action,  or  person  directly 
interested  in  the  event  thereof,  shall  testify  therein  of  his 
own  motion  when  any  adverse  party  sues  or  defends  as 
the  executor  or  administrator  of  any  deceased  person,  the 
husband  of  an  alleged  donor,  in  an  action  between  her 
administrator  and  one  claiming  certain  23roperty  as  a  gift, 
the  subject  of  the  litigation  involving  the  validity  of  the 
gift,  is  not  a  competent  witness  on  behalf  of  the  adminis- 
trator as  to  matters  occurring  before  her  death.^  So  a 
donee,  in  an  action  against  the  administrator  of  the  do- 
nor's estate,  is  not,  it  has  been  held,  a  competent  witness 
in  his  own  behalf.^     But,  on  the  contrary,  donees  have 

'  Easley  v.  Dye,  14  Ala.  158  ;  Durham  v.  Shannon,  116  Ind.  403  ;  Smith  v.  Little- 
john,  2  M'Cord  L.  362.     See  Devlin  v.  Greenwich  Savings  Bank,  125  N.  Y.  756. 

^Watson  V.  Kennedy,  3  Strob.  Eq.  1. 

^Caldwell  r.  Stuart,  2  Bail.  L.  574. 

*  Trowbridge  v.  Holden,  58  Me.  117  ;  Conkliti  c.  Conklin,  20  Hun,  278 ;  Hay  v. 
Hay,  8  Rich.  Eq.  384;  Schick  v.  Grote,  42  N.  J.  Eq.  352;  Hopkin.s  v.  Mancliester, 
16  R.  I.  663. 

^Conner  v.  Root,  11  Colo.  183. 

6  Cornell  v.  Cornell,  12  Hun,  312 ;  Wertz  v.  Merritt,  74  la.  683.  This  is  espe- 
cially true  where  the  executor  is  the  donee :  Smith  v.  Burnet,  34  N.  J.  Eq.  219; 
S.  C.  35  N.  J.  Eq.  314 ;  White  v.  White,  16  Wkly.  Dig.  45 ;  Waver  v.  Waver,  15 
Hun,  277. 


Estahlishment  of  Gift.  231 

been  admitted  to  testify  to  the  transaction  constituting 
even  a  mortis  causa} 

265.  Pleadiin^g. — Under  a  general  allegation  of  a 
gift,  the  donee  may  show  either  a  gift  inter  vivos  or  mortis 
causa}  Under  the  chancery  practice  it  is  necessary  to 
set  out  in  detail  the  facts  showing  a  gift,  and  the  general 
allegation  that  a  gift  was  made  is  insufficient.  So,  too, 
under  that  practice,  if  the  allegations  show  a  gift  inter 
vivos,  j)roof  of  a  gift  mortis  causa  cannot  be  introduced.^ 

266.  Questions  for  Jury. — Whether  or  not  the  al- 
leged donor  intended  to  make  a  gift,  and  whether  or  not 
there  Yfas  a  delivery,  actual  or  constructive,  are  questions 
for  the  jury,  under  the  instructions  of  the  court,  where 
the  delivery  is  controverted  as  to  what  is  sufficient  to  con- 
stitute it.* 

1  M'Gonnell  v.  Murray,  3  Ir.  Eq.  460  (1869)  ;  Cosnahan  v.  Grice,  15  Moo. 
P.  C.215. 

2  Walsh  V.  Bowery  Savings  Bank,  15  Daly,  403  ;  S.  C.  26  N.  Y.  St.  Rep.  95  ;  28 
N.  Y.  St.  Rep.  402;  7  N.  Y.  Supp.  97,  669.  See  Bedell  v.  Carll,  33  X.  Y.  581, 
586. 

5  ^Valter  v.  Hodge,  1  Wils.  CIi.  445. 

*M'Cluney  v.  Lockhart,  4  M'Cord,  251  ;  Thomas  v.  Degraffenreid,  17  Ala.  602; 
Hassell  v.  Tynte,  Ambl.  318;  Richards  v.  Symes,  2  Atk.  319;  S.  C.  3  Barnard. 
90  ;  2  Eq.  Cas.  Abr.  617  ;  Hambrooke  v.  Simmons,  4  Russ.  25  ;  Jacques  r.  Fourth- 
man,  137  Pa.  St.  428.  If  equivocal  language  has  been  used,  it  is  a  question  for 
the  jury  whether  the  donor  intended  a  gift :  Keeney  v.  Handrick,  23  Atl.  Rep. 
1068. 


CHAPTER  XI. 


NOTES  AND  CHOSES  IN  ACTION. 


267.  Choses  in  Action.  290. 

268.  Note  Payable  to  Order  and  Unin- 

dorsed by  Payee.  291. 

269.  Same  Continued— DnfEeld  v.  Elwes 

—Trustee  —  Mortgage—  Statute     292. 
of  Frauds. 

270.  Unassigned  Note,  Question  Settled.     293. 

271.  American   Decisions   Upon    Unas-     294. 

signed  Glioses  in  Action.  295. 

272.  Sealed  Note. 

273.  AH  Unassigned    Instruments     the     296. 

Subject  of  Gift.  297. 

274.  Gift  of  Notes  Carries  Mortgage —     298. 

Gift  of  Mortgage  Does  Not  Carry 
Note.  299. 

275.  Draft  or  Bill  of  Exchange. 

276.  Gift  of  Part  of  Note. 

277.  Memorandum.  300. 

278.  Non-transferable  Instrument.  301. 

279.  Bank  Account. 

280.  Gift  of  Eeceipt  for  the  Instrument    302. 

Given, 

281.  Policy  of  Insurance.  303. 

282.  Gift  of  Bond  or  Note  Merged  ina       304. 

Judgment — Gift  of  Judgment. 

283.  Statutory     Eegulations     Affecting     305. 

Transfer.  306. 

284.  Note   Given  to  Equalize  Distribu- 

tion of  Estate — Legacy  Duty.  307. 

285.  Check   Operates   as  an     Equitable 

Assignment    of    a  Specific    De-     308. 
posit.  309. 

286.  Personal  Representative  Collecting 

Proceeds  of  Note  Given.  310, 

287.  To  Whom  Payment  Made. 

288.  Donor's  Liability  on  Indorsement. 

289.  Gift  of  Expectancy. 


Consideration  for  the  Note  Given 
— Inadequacy  of  Consideration, 

Desire  or  Intention  to  Make  a 
Gift  Not  Sufficient. 

Delivery  Essential  to  Validity 
of  Gift. 

Kedelivery  of  Note. 

Gift  by  Deed. 

Production  of  Note,  Effect  Upon 
Presumption  of  Ownership. 

Forgiving  Debt. 

Receipt  for  Debt. 

Note  Made  Payable  to  Third 
Person. 

Note  Payable  to  Husband  and 
Wife,  or  to  Two  or  More  Per- 
sons--Delivery — Survivorship. 

Note  of  Donor  Payable  to  Donee. 

Lawson  v.  Lawson — Gift  for 
Mourning. 

Note  of  Donor  Payable  to  Donee 
is  Valid. 

Donor's  Own  Mortgage  to  Donee. 

Subscription  to  a  Charity, 
Church,  College,  etc. 

Acceptance  of  Subscription. 

Acceptance —  Revocation — Death 
of  Subscriber. 

Who  May  Sue  Upon  Subscrip- 
tion. 

Sunday  Subscriptions. 

Conditional  Promise — Considera- 
tion. 

Liability  of  a  Single  Donor  or 
Subscriber — Mutual  Subscrip- 
tions Not  Sufficient  to  Bind 
Donors. 


267.  Chose  in  Action. — A  chose  in  action,  such  as 
232 


Notes  and  Choses  in  Action.  233 

notes,  bonds,  written  contracts,  and  the  like,  held  by  the 
donor,  may  be  the  subject  of  a  gift  either  inter  vivos  or 
mortis  causa.  The  early  authorities  contain  evident  mis- 
givings upon  the  subject  and  hedge  around  such  gifts 
with  difficulties ;  but  as  early  as  1710  it  was  admitted 
that  a  government  "  tally,"  which  may  be  regarded  as 
nothing  more  than  a  claim  against  the  government,^ 
could  be  the  subject  of  a  gift  moi^tis  causa.^  So  in  1744 
the  same  doctrine  was  recognized  as  applicable  to  a  bond,^ 
and  afterward  to  a  bank-note  payable  to  bearer.^  The 
argument  against  the  validity  of  the  gift  of  a  bond  was 
that  there  was  no  actual  delivery,  the  note  or  bond  being 
but  a  chose  in  action,  and  therefore  there  was  no  delivery 
but  of  the  paper.  But  it  was  answered  that  though  it 
were  true  that  a  bond,  which  is  a  specialty,  is  a  chose  in 
action,  and  its  princi]3al  value  consists  in  the  thing  in 
action,  yet  some  property  is  conveyed  by  the  delivery ; 
and  to  the  degree  that  the  law  books  say  the  person  to 
whom  the  specialty  is  given,  may  cancel,  burn,  and  de- 
stroy it ;  the  consequence  of  which  is  that  it  puts  it  in 
his  power  to  destroy  the  obligee's  power  of  bringing  an 
action,  because  no  one  can  bring  an  action  on  a  bond  with- 
out a  profert  in  court.  Another  thing,  it  was  answered, 
made  it  amount  to  a  delivery,  that  the  law  allowed  it  a 
locality ;  and  therefore  a  bond  is  bona  notabilia  so  as  to 
require  a  23rerogative  administration,  where  a  bond  is  in 
one  diocese  and  goods  in  another.  In  the  case  from 
which  this  argument  has  been  drawn,  nearly  all  in  the 
language  of  the  court,  care  was  taken  to  call  attention  to 
the  difference  then  in  law  between  a  sj^ecialty  and  a  note  ; 
for  it  was  said  that  the  destruction  of  a  specialty,  which  is 

^  Jacob's  Law  Diet.,  subject  "  Talley." 
"^  Jones  V.  Selby,  Finch's  Prec.  in  Ch.  300. 
^Snellgrove  v.  Bailey,  3  Atk.  214. 
*  Miller  v.  Miller,  3  P.  Wms.  356. 


234  Gifts. 

the  foundation  of  the  action  itself,  destroyed  the  demand, 
but  the  delivery  of  a  note  payable  to  bearer  was  only  a 
delivery  of  the  evidence  of  the  contract,  and  not  a  good 
delivery  of  the  j^ossession  of  the  money  represented  by 
the  note.  And  the  court  proceeds  to  illustrate  its  position 
by  saying  that  if  one  were  to  loan  money  taking  back  a 
receipt  for  it,  and  a  mortgage  to  secure  its  payment,  the 
receipt  being  evidently  in  no  Avay  a  promise  to  i^ay  but 
merely  evidence  of  payment  made  of  the  money  described 
in  the  mortgage,  and  the  mortgagee  delivers  over  the  re- 
ceipts as  a  gift  of  the  money  and  the  mortgage  securing 
it,  that  would  not  have  been  a  valid  delivery ;  for  neither 
the  possession  of  the  money  nor  the  mortgage  would  have 
been  made,  which  was  essential  to  the  validity  of  the  gift.^ 

268.  Note  Payable  to  Okder  and  Unindorsed  by 
Payee. — The  old  cases  hold  unqualifiedly  that  a  note 
payable  to  the  order  of  the  payee,  unindorsed  by  him,  or, 
if  indorsed  by  him  to  a  particular  person,  unindorsed  by 
the  indorsee,  cannot  be  made  the  subject  of  a  gift  inter 
vivos  or  donatio  mortis  causa.  Thus  in  1735  it  was  said  : 
"  But  then  as  to  the  note  for  £100  which  was  merely  a 
chose  in  action,  and  must  still  be  sued  in  the  name  of  the 
executor,  that  cannot  take  effect  as  a  donatio  mortis  causa, 
inasmuch  as  no  property  therein  could  pass  by  the  de- 
livery."^ A  number  of  early  cases  hold  to  this  rule.^ 
But  at  an  early  date  ^  this  doctrine  was  much  shaken, 
and  the  decision  then  rendered  finally  became  the  rule  of 
decision  in  England.  The  case  was  one  of  a  bond  de- 
livered by  the  payee,  without  indorsement  or  assignment, 
to  the  donee  as  a  gift  mortis  causa.     The  court  held  it 

^  Ward  V.  Turner,  2  Ves.  Sr.  431. 

"^  Miller  v.  Miller,  3  P.  Wms.  356. 

3  Ward  V.  Turner,  2  Ves.  Sr.  431  ;  Parthrick  v.  Freind,  2  C0II7,  362. 

*  1744. 


Notes  and  Ckoses  in  Action.  235 

sufficient  to  pass  the  equitable  interest  of  the  donor,  and 
refused  to  decree  that  the  donee  deliver  up  the  bond  to 
the  administrator  of  the  donor.  The  court  by  way  of 
illustration  said :  "  Put  the  case,  if  a  chattel  in  possession 
had  been  bought  by  the  intestate,  and  the  bill  of  sale 
taken  in  a  third  person's  name  in  trust,  the  legal  prop- 
erty would  have  been  in  the  trustee,  and  only  the  equi- 
table interest  in  the  cestui  que  trust ;  and  yet  if  the  cestui 
que  trust  had  delivered  it  over  to  the  defendant,  that 
would  have  been  a  good  gift  donatio  causa  mortis  as  to 
the  equitable  property.  This  comes  very  near  the  case 
of  a  chose  in  action,  and  the  cases  are  so."  ^  Another 
early  case  was  decided  nearly  three-quarters  of  a  century 
afterward.  That  was  a  gift  of  a  bond  as  a  donatio  mortis 
causa;  and  the  court  held  it  valid,  and  liberty  was 
granted  to  the  donee  by  the  court  to  use  the  executors' 
names  in  suing  on  the  bond,  he  indemnifying  them.  The 
court  said  that  "  the  case  of  Snellgrove  v.  Bailey "  has  es- 
tablished that  there  may  be  a  donatio  mortis  causa  of  a 
bond,  though  not  of  a  simple  contract,  nor  by  the  delivery 
of  a  mere  symbol."  ^  The  question  was  virtually  put  to 
rest  by  a  decision  of  the  House  of  Lords  in  1827,  though 
the  legitimate  deduction  to  be  made  from  that  case  does 
not  seem  to  have  been  acquiesced  in  until  1859.*  In  the 
House  of  Lords  case,  a  donor  made  a  gift,  as  the  court 
found,  mortis  causa,  of  a  conveyance  in  fee  of  lands  to 
secure  a  certain  sum  of  money,  with  the  usual  covenant 
for  2^ayment  of  the  money  lent,   and  a  bond  by  way  of 

*  Snellgrove  r.  Bailey,  3  Atk.  214.  The  court  relied  upon  Drury  v.  Smith,  1 
P.  Wms.  404,  where  a  testator,  having  made  a  will  disposing  of  all  his  estate, 
afterward  gave  by  parol  a  note  to  one,  to  deliver  over  to  his  nepliew,  if  the  tes- 
tator sliould  die  of  his  present  sickness.  The  nephew  brought  a  bill  against  the 
executrix  for  the  note,  and  the  gift  was  upheld. 

■  3  Atk.  214. 

'Gardner  v.  Parker,  3  Madd.  Ch.  184. 

*  Veal  V.  Veal,  27  Beav.  303 ;  6  Jur.  (N.  S.)  527 ;  20  L.  J.  Ch.  321. 


236  Gifts. 

collateral  security ;  also  an  assignment  of  a  mortgage 
debt  of  another  certain  sum,  and  of  a  judgment  for  that 
sum  recovered  on  a  bond  with  a  conveyance  of  the  land, 
and  the  usual  covenant  for  payment  of  the  money.  There 
was  no  assignment  in  writing  by  the  donor  to  the  donee 
of  these  securities ;  but  the  gift  was  upheld. 

269.  Same  Continued — Duffield  v.  Elwes — Trus- 
tee— Mortgage — Statute  of  Frauds. — The  real  ques- 
tion involved  was  stated  at  length  by  Lord  Eldon,  as  fol- 
lows :  "  Whether  the  act  of  the  donor  being,  as  far  as  the 
act  of  the  donor  itself  is  to  be  viewed,  complete,  the  per- 
sons who  represent  that  donor,  in  respect  of  23ersonalty — 
the  executor,  and  in  resj^ect  of  realty — the  heir-at-law,  are 
not  bound  to  complete  that  which,  as  far  as  the  act  of  the 
donor  is  concerned  in  the  question,  was  incomplete ;  in 
other  words,  where  it  is  the  gift  of  a  j^ersonal  chattel  or 
the  gift  of  a  deed  which  is  the  subject  of  the  donatio  mortis 
cawsa,  whether,  after  the  death  of  the  individual  who  made 
that  gift,  the  executor  is  not  to  be  considered  a  trustee  for 
the  donee,  and  whether,  on  the  other  hand,  if  it  be  a  gift 
affecting  the  real  interest — and  I  distinguish  now  between 
a  security  upon  land  and  the  land  itself — whether  if  it  be 
a  gift  of  such  an  interest  in  law,  the  heirs-at-law  of  the 
testator  is  not  by  virtue  of  the  operation  of  the  trust,  which 
is  created  not  by  indenture  but  a  bequest  arising  from 
operation  of  law,  a  trustee  for  that  donee."  And  he  added  : 
"  I  apprehend  that  really  the  question  does  not  turn  at  all 
upon  what  the  donor  could  do,  or  what  the  donor  could 
not  do  ;  but  if  it  was  a  good  donatio  mortis  causa,  what  the 
donee  of  that  donor  could  call  upon  the  representative  of 
the  donor  to  do  after  the  death  of  that  donor."  After  a 
lengthy  discussion  of  the  cases,  Lord  Eldon  declared : 
"  The  opinion  I  have  formed  is  that  this  is  a  good  donatio 


Notes  and  Choses  in  Action.  237 

mortis  causa,  raising  by  operation  of  law  a  trust ;  a  trust 
which,  being  raised  by  operation  of  law,  is  not  within  the 
statute  of  frauds,  but  a  trust  which  a  court  of  equity  will 
execute ;  and  therefore,  in  my  humble  judgment,  this 
declaration  must  be  altered  by  stating  that  this  lady,  the 
daughter  [the  donee],  is  entitled  to  the  benefit  of  these 
securities."^  The  court  commented  at  length  upon  a  decis- 
ion of  Lord  Hardwicke's,^  wherein  his  lordship  had  de- 
cided that  if  a  mortgagee  gave  to  a  mortgagor  the  deeds  of 
the  mortgage,  the  statute  of  frauds  would  not  stand  in  the 
way,  and  the  gift  was  a  valid  gift  of  the  money  for  which 
the  deeds  were  a  security .'"^  Some  thirty  years  after  the 
decision  by  the  House  of  Lords,  the  Court  of  Exchequer 
held  that  a  gift  inter  vivos  of  two  mortgages  or  debent- 
ures, assuming  that  the  property  in  the  mortgage  debts 
did  not  pass  by  such  gift,  yet  that  the  donor's  execu- 
tor could  not  maintain  detinue  for  the  documents  against 
the  donee.  In  the  argument  of  the  case  it  was  said  that  the 
question  was  whether  the  property  in  the  mortgage  debts 
passed  to  the  donee,  to  which  Martin,  B.,  said:  "Surely 
this  is  not  the  question.  If  the  obligee  of  a  bond  gives  it 
to  a  third  person,  the  obligee's  executors  cannot  claim  back 
the  paper  on  which  the  bond  is  written,  though  the  gift 
may  not  operate  as  a  valid  assignment  of  the  debt."  The 
court  refused  to  enter  a  decree  giving  the  documents  to 
the  executors  ;  for  the  gift  Avas  a  valid  gift  of  the  parch- 
ment, and  the  claim  that  because  the  gift  failed  the  donee 
got  no  title  to  the  documents  could  not  be  upheld."^ 

1  Duffield  r.  Elwes,  1  Bligh  (N.  S.),  497,  reversing  1  Sim.  &  St.  239  ;  S.  C.  1  L. 
J.  Ch.  239. 

^  Kichard  r.  Svmes,  2  Atk.  319 ;  S.  C.  3  Barn.  90 ;  2  Eq.  Cas.  Abr.  617. 

^  Lord  Eldon  points  out  that  the  case  of  Ilassel  r.  Tynte,  Ambl.  318,  was  really 
not  a  decision  on  this  point,  although  Lord  Hardwicke  expressed  a  doubt  whether 
a  mortgage  deed  could  be  made  the  subject  of  a  gift. 

*  Barton  r.  Gainer,  3  H.  &  N.  387.  The  court  quoted  Sheppard's  Touchstone, 
p.  249,  as  follows :    "  A  man  may  give  or  grant  his  deeds — i.  e.,  the  parchment, 


238  Gifts. 

270.  Un ASSIGN-ED  Note — Question  Settled. — In  1859 
the  question  was  put  at  rest  in  England  by  a  decision  of 
the  Master  of  the  Kolls.  That  was  a  case  of  an  unassigned 
note  as  a  donatio  mortis  causa,  and  it  was  held  to  be  a 
valid  gift.  After  reviewing  the  decisions,  the  Master 
admitted  the  embarrassment  under  which  he  labored, 
but  put  his  decision  uj^on  a  then  unreported  case,^  decided 
in  1832  by  Sir  John  Leach,  whose  decision  in  Duffield  v. 
Elwes  was  overruled  by  Lord  Eldon  in  the  House  of 
Lords.  For  this  reason  the  Master  attached  peculiar  sig- 
nificance to  his  decision  in  this  unreported  case.  The 
facts  in  the  unreported  case  were  that  bills  were  drawn  on 
the  East  India  Company  in  favor  of  Colonel  Weguelin 
or  order,  and  were  accepted ;  but  it  did  not  appear  from 
the  papers  whether  they  were  indorsed  by  Colonel 
Weguelin  or  not.  Shortly  before  his  death,  Weguelin 
gave  the  bills  to  his  wife.  The  Master  in  taking  an  ac- 
count of  the  estate  included  them  in  the  outstanding 
estate  of  the  testator ;  but  the  widow  took  exception  to 
his  report,  and  Sir  John  Leach  sustained  them  and  made 
a  declaration  that  there  was  a  good  donatio  mortis  causa. 
The  Master  of  the  Holls,  in  the  case  of  1859,  after  review- 
ing the  authorities  and  this  then  unreported  case,  says : 
"  I  also  think  it  a  much  more  healthy  state  of  the  law 
that  the  validity  of  such  a  gift  should  not  depend  on 
whether  the  testator  had  written  his  name  on  the  back  of 
the  bills  or  not,  if  it  be  clear  that  he  intended  to  give 

paper,  and  wax — to  another  at  his  pleasure,  and  the  grantee  may  keep  or  cancel 
them.  And,  therefore,  if  a  man  hase  an  obligation  he  may  give  or  grant  it  away, 
and  so  sever  the  debt  and  it." 

Bank  notes  have  been  lield  the  subject  of  a  gift  from  an  early  date  :  Powel  v. 
Cleaver,  2  Bro.  C.  C  500  ;  Miller  v.  Miller,  3  P.  Wms.  356. 

'Rankin  v.  Weguelin,  Reg.  lib.,  B.  1831,  folio  2385,  now  reported  in  27  Beav. 
309.  See  McCullouch  v.  Bland,  2  Giff.  428 ;  S.  C.  6  Jur.  N.  S.  1183 ;  3  L.  T.  N.  S. 
357  ;  9  W.  R.  657,  and  Richardson  t.  Richardson,  3  L.  R.  Eq  686  ;  S.  C.  36  L.  J. 
Ch.  653. 


Notes  and  Glioses  in  Action.  239 

tliem."^  Taking  this  view  of  the  matter,  the  donor's 
writing  his  name  across  the  back  of  the  paper  is  only 
evidence  of  his  intention  to  make  the  gift ;  and  that  intent 
and  his  acts  therewith  connected  may  be  proved  aside 
from  such  indorsement.  The  okl  rule  that  impeded  the 
holding  of  such  gifts  as  valid,  because  the  donee  could  not 
maintain  an  action  thereon,^  is  swept  away  by  the  more 
enlightened  rule  which  compels  the  personal  representa- 
tive of  the  donor,  upon  being  indemnified  for  whatever 
costs  he  may  be  compelled  to  pay,  to  permit  the  action  to 
be  brought  in  his  name  ;  or  by  the  equitable  rule  enforced 
by  statutes  or  codes  that  the  real  party  in  interest  may 
bring  an  action  upon  a  note  he  holds,  whether  it  was  in- 
dorsed to  him  or  not,  leaving  the  matter  of  non-indorse- 
ment as  a  question  of  evidence.  Indeed,  it  is  said  in  an 
American  case  that  "  the  true  reason  why  a  bond  will 
pass  to  a  donee  causa  mortis  is  not  because  he  has  the 
power  of  destroying  it,  nor  because  profert  must  be  made 
of  it  when  sued,  nor  even  because  it  is  a  security  of  a 
higher  nature  than  some  other  choses  in  action ;  but  it  is 
because  the  donee  has  in  equity  a  right  to  enforce  pay- 
ment of  it  and  to  treat  the  executors  of  the  donor  as 
trustees  for  his  benefit.  In  other  words,  a  bond,  like  a 
note  of  a  third  person,  is  assignable  in  equity ;  and  the 
principle  that  courts  of  equity  will  not  compel  the  com- 
pletion of  a  mere  voluntary  gift  or  conveyance  does  not 
apply  to  donations  causa  mortis.^^^ 

271.  American  Decisions  Upox  Uxassigned  Choses 
IN  Action. — The  American  courts  had  the  advantage  of 
this  discussion  on   this   point   under  consideration,  and 

1  Veal  ?;.  Veal,  27  Beav.  303. 

2  Miller  v.  Miller,  3  P.  "Wms.  3o6. 

3  Brown  v.  Brown,  18  Conn.  410 ;  S.  C.  46  Am.  Dec.  328.     See  Kiff  v.  Weaver, 
94  N.  C.  274. 


240  Gifts. 

reached  a  conclusion  with  much  more  ease  than  they 
otherwise  would  have  done.  In  Massachusetts  it  was  de- 
cided, in  1837,  that  an  unassigned  or  unindorsed  note 
could  be  the  subject  of  a  valid  donatio  inter  vivos.  In  answer- 
ing the  objection  that  such  a  gift  was  void  the  court  said  : 
"  But  as  a  good  and  effectual  equitable  assignment  of  a 
chose  in  action  may  be  made  by  parol,  and  as  courts  of 
law  take  notice  of  and  give  effect  to  such  assignments, 
there  seems  to  be  no  good  foundation  for  this  objection.  It  is 
true  that  the  cases,  which  are  numerous,  in  which  such 
equitable  assignments  have  been  supported,  are  founded 
on  assignments  for  a  valuable  consideration  ;  but  there  is 
little,  if  any,  distinction  in  this  respect  between  contracts 
and  gifts  inter  vivos ;  the  latter,  indeed,  when  made  per- 
fect by  delivery  of  the  things  given,  are  executed  con- 
tracts. By  delivery  and  acceptance  the  title  passes,  the 
gift  becomes  perfect,  and  is  irrevocable.  There  is,  there- 
fore, no  good  reason  why  j^roperty  thus  acquired  should 
not  be  protected  as  fully  and  effectually  as  j^roperty  ac- 
quired by  purchase.  And  so  we  think  that  a  gift  of  a 
chose  in  action,  provided  no  claims  of  creditors  interfere 
to  affect  its  validity,  ought  to  stand  on  the  same  footing 
as  a  sale."  ^  To  the  contention  that  the  donee  could  not 
maintain  the  action  in  the  name  of  the  donor's  adminis- 
trator, the  court  said  :  "  But  if  an  equitable  assignment 
is  sufficient  to  complete  the  gift,  it  follows  that  the  admin- 
istrator is  a  trustee,  and  cannot  set  up  his  legal  right  in 
order  to  defeat  the  trust."  ^  This  decision  has  deen  fol- 
lowed in  that  State,  both  with  respect  to  gifts  inter  vivos 
and  mortis  causa?     The  same  rule  of  decision  holds  good 

1  Grover  v.  Grover,  2i  Pick.  261  ;  S.  C.  So  Am.  Dec.  319. 

^Tlie  court,  be-^ides  the  English  autliorities,  relied  upon  "Wriglit  v.  Wright,  1 
Cow.  598,  which  is  not,  as  we  shall  see,  a  sound  authority ;  but  it  contained  a  dic- 
tum which  supported  the  court's  conchision. 

^  Sessions  v.  Moseley,  4  Gush.  87 ;  Bates  i'.  Kempton,  7  Gray,  382. 


Notes  and  Choses  in  Action.  241 

in  Maine/  in  Kentucky,^  in  Georgia,'^  in  California,^  in 
Alabama,^  in  Virginia/  in  Michigan,^  in  South  Carolina,^ 
in  North  Carolina,^  in  Connecticut/*'  in  New  York,"  in 
Pennsylvania,^^  in  Tennessee,^^  in  Canada,^*  in  New 
Jersey ,^^  in  Minnesota,^'''  in  New  Hampshire,^^  in  Indi- 
ana,^^  in  the  Federal  courts,^^  and  in  West  Virginia,^^ 
but,  not  possibly,  in  Ireland.^^ 

^  Borneman  v.  Sidlinger,  15  Me.  429  (a  note  and  mortgage) ;  Wing  v.  Merchant, 
57  Me.  383 ;  Trowbridge  v.  Holden,  58  Me.  117;  Parker  v.  Marston,  27  Me. 
196. 

^  Stephenson  v.  King,  81  Ky.  425 ;  Ashbrook  v.  Eyon,  2  Bush.  228  ;  Southerland 
V.  Southerland,  5  Bush.  591 ;  Turpin  v.  Thompson,  2  Met.  420. 

3  Hill  V.  Sheibley,  64  Geo.  529. 

*Druke  v.  Heiken,  61  Cal.  346  ;  S.  C.  44  Am.  Rep.  553. 

^  Jones  V.  Deyer,  16  Ala.  221 ;  Walker  v.  Crews,  73  Ala.  412  (citing  Borum  v. 
King,  37  Ala.  606j. 

^  Elam  V.  Keen,  4  Leigh,  333. 

'  Ellis  V.  Secor,  31  Mich.  185. 

8Trenholm  v.  Morgan,  28  S.  C.  268. 

3  Kiff  w.  Weaver,  94  N.  C.  274  ;  S.  C.  34  Alb.  L.  Jr.  11,  distinguishing  Overton 
V.  Sawyer,  7  Jones  (N.  C.)  L.  6 ;  Fairly  v.  M'Lean,  11  Ired.  (N.  C.)  L.  158 ;  and 
Brickhouse  v.  Brickhouse,  11  Ired.  (N.  C.)  L.  404,  which  were  actions  at  law. 

1"  Brown  v.  Brown,  IS  Conn.  410;  S.  C.  46  Am.  Dec.  328  ;  Camp's  Appeal,  36 
Conn.  88. 

"  Wright  r. Wright,  1  Cow.  598  ;  Contant  v.  Schuyler,  1  Paige,  316  ;  Stevens  v.  Ste- 
vens, 5  T.  &  C.  87  ;  House  v.  Grant,  4  Lans.  296 ;  Westerlo  v.  DeWitt,  36  N.  Y.  340 ; 
S.  C.  2  Trans.  App.  332 ;  93  Am.  Dec.  517  ;  Bedell  v.  Corll,  33  N.  Y.  581 ;  Walsh  v. 
Sexton,  55  Barb.  251  (U.  S.  bonds  in  a  box)  ;  Gray  v.  Barton,  55  N.  Y.  68 ;  Taber 
V.  Willetts,  44  Hun,  346 ;  S.  C.  8  N.  Y.  St.  Repr.  825 ;  Montgomery  v.  Miller,  3 
Redf.  154;  affirmed  78  N.  Y.  282;  Stevens  v.  Stevens,  2  Hun,  470;  Kurtz  v. 
Smither,  1  Dem.  399  (bank  certificate  of  deposit)  ;  Grangiac  v.  Arden,  10  Johns. 
293  (a  lottery  ticket) ;  .Johnson  v.  Spies,  5  Hun,  468. 

i^Gourley  v.  Linsenbigler,  51  Pa.  St.  345 ;  Wells  v.  Tucker,  3  Binn.  366. 

^^  Richardson  v.  Adams,  10  Yerg.  273  ;  Donnell  v.  Doniiell,  1  Head.  267. 

"  Purdham  v.  Murray,  9  Ont.  App.  369,  reversing  29  Grant.  Ch.  443. 

'^Egerton  v.  Egerton,  17  N.  J.  Eq.  419;  Corle  v.  Monkhouse,  25  Atl.  Rep. 
157. 

'« Tnllis  V.  Fridley,  9  Minn.  79 ;  Stewart  v.  Hidden,  13  Minn.  43. 

'^  Keniston  v.  Sceva,  54  N.  H.  24 ;  Abbott  ?•.  Tenney,  18  N.  H.  109. 

iMVhite  V.  Callinan,  19  Tnd.  43. 

"  Chancy  v.  Basket  6  Repr.  769  ;  S.  C.  smb  name,  Hassell  v.  Basket,  8  Biss.  303 ; 
affirmed  107  U.  S.  602  ;  S.  C.  108  U.  S.  267. 

20  Martin  v.  Smith  25  W.  Va.  579 

*^Lee  V.  Magrath,  10  Ir.  Rep.  (1882)  pp.  45,  313.  In  Louisiania  a  donatio  inter 
16 


242  Gifts. 

272.  Sealed  Note. — In  some  States,  where  the  okl 
distinction  between  sealed  and  unsealed  instruments  is 
kept  up,  the  donor's  own  sealed  note,  given  by  the 
donor  to  the  donee  is  a  valid  gift,  and  it  may  be  en- 
forced against  his  estate  after  his  death,  "  A  voluntary 
bond,"  said  Chief  Justice  Gibson,  "  is  botli  in  equity 
and  in  law,  a  gift  of  the  money."  ^  "  It  is  not  now  to 
be  doubted,"  said  Justice  Bell,  "that  though  a  jmrol 
unexecuted  promise  to  make  a  gift  inter  vivos  without 
consideration  is  void,  an  agreement  under  seal  to  do  so 
may  be  enforced  as  a  legal  obligation."^  These  cases 
were  followed  in  the  case  of  a  sealed  uote,^  so  also  in  the 
case  of  a  mortgage  under  seal.^  So  where  seals  are 
presumptive  evidence  of  a  consideration,  such  presump- 
tion is  not  overcome  by  proof  that  a  valuable  considera- 
tion was  not  paid.^ 

273.  All  Un assigned  I^^steuments  the  Subject  of 
Gift. — ^It  may  be  stated  that  any  written  obligation  is  the 
subject  of  gift,  without  indorsement  or  assignment.  Illus- 
trations have  already  been  given  of  notes,  bonds,  and  mort- 
gages. But  the  cases  do  not  stop  here  ;  and  it  is  said  that 
"  All  evidence  of  indebtedness  which  may  be  regarded 
as  re^^resenting  the  debt,  whether  with  or  without  in- 
dorsement, are  the  subject  of  a  donatio  mortis  causa,^^  '^ 

vivos  of  a  note  must  be  proved  before  a  notarv  public  and  two  witnesses  to  make 
the  gift  valid  :  Succession  of  De  Pouilly,  22  La.  Ann.  97.  This  is  by  reason  of 
the  provisions  of  the  code. 

iSherk  v.  Endress,  3  W.  &  S.  255;  Ross's  Appeal,  127  Pa.  St.  4. 

''Yard  v.  Patton,  13  Pa.  St.  278,  285. 

3  Mack's  Appeal,  68  Pa  St.  231 ;  In  re  Estate  of  Cowen,  3  Pitts.  471. 

*Stoy  V.  Stoy,  41  N.  J.  Eq.  370 ;  Aller  v.  Aller,  40  N.  J.  L.  446. 

'Van  Amburgh  v.  Kramer,  16  Hun,  205 ;  Anthony  v.  Harrison,  14  Hun,  198, 
affirmed  74  N.  Y.  613,  without  an  opinion. 

6  Kiflf  V.  Weaver,  94  N.  C.  274. 


Notes  and  Choses  in  Action.  243 

and  of  course  of  intei^  vivos}     Even   a  gift  of  an  un- 
assigned  I.  O.  U.  is  valid.^ 

274.  Gift  of  Note  Caekies  Mortgage — Gift  of 
Mortgage  Does  not  Carry  Note. — A  valid  gift  of  a 
note  secured  by  mortgage  carries  with  it  the  mortgage, 
though  such  mortgage  Avas  never  delivered  nor  assigned  to 
the  donee,  and  even  though  the  note  was  unassigned  by 
the  donor,  the  payee.^  But  a  delivery  of  the  mortgage, 
although  duly  assigned,  without  a  delivery  of  the  note, 
does  not  make  a  valid  gift  of  the  note,  and  the  mortgage 
cannot  be  enforced.*  Yet  where  a  father  gave  his  son  a 
mortgage  he  held  against  him,  on  his  death-bed,  saying, 
"  Take  this,  but  do  not  wrong  your  children,  and  do  not 
mortgage  your  property,"  the  gift  was  held  to  be  a  good 
causa  mortis  to  the  son  alone,  although  the  son  had  already 
mortgaged  the  estate,  of  which  the  father  was  not  aware.^ 

275.  Draft  or  Bill  of  Exchange. — A  bill  of  ex- 
change  in   favor  of  the  donor,  is  the  subject  of  a  gift, 

1  Brown  v.  Brown.  18  Conn,  410 ;  S.  C.  4G  Am.  Dec.  328 ;  Westerlo  v.  De  Witt, 
36  N.  Y.  310  ;  S.  C.  93  Am.  Dec.  517  ;  2  Trans.  App.  332  (a  certificate  of  deposit  * ; 
Basket  v.  Hsissell,  107  U.  S.  602 ;  S.  C.  27  Alb.  L.  Jr.  3(57 ;  108  U.  S.  267 ;  48  Am. 
Rep.  506  ;  affirming  8  Biss.  303  and  6Repr.  769  (a  certificate  of  deposit) ;  Hop- 
kins V.  Mancliester,  16  R.  I.  663 ;  Moore  v.  Moore,  L.  R.  18  Eq.  474 ;  S.  C.  43  E. 
J.  Ch.  617  ;  22  W.  R.  729;  30  L.  J.  (N.  S.)  352;  10  Moak.  788  ;  Beardslee  v. 
Reeves,  76  Mich.  661 ;  Annis  v.  Witt,  33  Beavan,  619  (a  banker's  deposit  note) ; 
Harris  v.  Clark,  2  Barb.  94  ;  S.  C.  3  Comst.  93  ;  Cornell  v.  Cornell,  12  Hun,  312. 

=>  Hewitt  V.  Kaye,  L.  R.  6  Eq.  Cas.  198  ;  S.  C.  37  L.  J.  Ch.  470  ;  15  W.  R.  835  ; 
Gason  r.  Rich,  19  L.  R.  Irish,  391. 

^Druker.  Heiken,  61  Cal.  346;  KifF  r.  Weaver,  94  K  C.  274;  Borneman  r. 
Sidlinger,  15  Me.  429  ;  S.  C.  21  Me.  185  ;  see  Hackney  r.  Vrooman,  62  Barb.  ()5() ; 
Brown  v.  Brown,  18  Conn.  410  ;  Hassell  v.  Tynte,  Ambl.  318  ;  DufEeld  v.  Hicks,  1 
Dow  N.  S.  1 ;  1  Bligh.  N.  S.  497. 

*  Wilson  I'.  Carpenter,  17  Wis.  512;  McHugh  v.  O'Connor,  91  Ala.  243. 

^Meridetli  v.  Watson,  17  Jur.  1063.  It  should  be  observed  that  this  was  a  for- 
giveness of  the  debt,  and  not  an  actual  gift  of  the  mortgage.  If  the  transactinn 
falls  short  of  a  gift,  the  taking  of  a  new  mortgage  in  place  of  the  old,  to  correct  an 
error  in  the  latter,  i-s  not  sufficient  to  turn  the  transaction  into  a  gift :  Oldenberg 
V.  Miller,  82  Mich.  650. 


244  Gifts. 

although  such  donor  dies  before  it  falls  due,  even  though 
it  be  not  indorsed  by  the  donor/  So  a  draft  drawn  by 
the  donor  in  favor  of  the  donee  is  valid,  if  presented  and 
accepted  before  the  death  of  the  donor  ;  but  it  is  not  a 
good  gift  i  f  not  presented  and  accepted  before  the  donor's 
death.^  But  if  presented  and  the  drawee  declined  to  ac- 
cept it  until  after  he  has  ascertained  whether  the  signa- 
ture was  genuine,  he  being  in  actual  doubt  on  that  ques- 
tion, the  gift  is  still  good,  and  if  the  estate  receive  the 
fund  upon  which  it  is  drawn,  it  may  be  enforced  against 
such  estate.^ 

276.  Gift  of  Part  of  Note, — There  is  no  doubt  that 
the  owner  of  a  note  may  make  a  gift  of  a  part  of  the  note, 
the  chief  trouble  lying  in  the  question  of  delivery.  If 
words  of  gift  were  used,  and  an  actual  delivery  made, 
then  the  gift  of  the  part  given  would  be  valid  ;  so  we 
apprehend  that  if  the  note  was  actually  delivered  by 
hand  and  then  received  back  by  the  donor  to  hold 
for  the  benefit  of  the  donee  and  for  himself,  the  gift 
would  be  a  good  one.  So,  too,  if  the  donor  by  an  instru- 
ment in  writing,  signed  by  himself,  declare  a  gift  of  a 
part  of  the  note  to  be  given  to  the  donee,  and  deliver  this 
written  statement  to  such  donee,  he  would,  no  doubt,  con- 
stitute himself  a  trustee,  and  the  gift  of  such  part  would 
be  valid.^  But  if  he  were  merely  to  declare  to  the  donee 
that  he  gave  him  a  part  of  the  note,  and  did  not  deliver 
it,  the  gift  would  not  be  valid,  we  are  inclined  to  think ; 
although,  as  we  have  seen  elsewhere,  if  a  husband  take  a 
note  payable  to  himself  and  wife,  that  is  a  valid  gift  to 

1  Austin  V.  Mead,  L.  R.  15  Ch.  Div.  651 ;  S.  C.  50  L.  J.  Ch.  30:  43  L.  T.  117 ; 
28  W.  R.  891  ;  Rankin  v.  Weguelin,  27  Beav.  309 ;  S.  C.  29  L.  J.  Ch.  323,  note. 

-  Harris  v.  Clark,  3  N.  Y.  93 ;  afBrming  2  Barb.  94. 

3  Bromley  v.  Brunton,  L.  R.  6  Eq.  275;  S.  C.  37  L.  J.  Ch.  902 :  16  W.  R.  1006  ; 
18  L.  T.  N.  S.  628. 

*  Green  f.  Langdon,  23  Mich.  221. 


Notes  and  Choses  in  Action.  245 

the  wife,  if  she  survive  him,  although  no  actual  delivery 
was  ever  made  to  the  wife,  the  circumstances  dispensing 
with  a  delivery.^  An  English  case  somewhat  bears  on 
these  conditions.  There  a  testator,  who  held  a  banker's 
deposit  for  £2,700,  in  his  last  illness,  two  days  before  his 
death,  expressed  a  wish  to  give  £500,  part  of  the  amount, 
to  his  wife.  At  his  request,  a  friend  filled  up  a  seven 
days'  notice  to  the  bank  to  withdraw  the  deposit,  and  the 
testator  signed  it.  This  friend  then  took  the  notice  to  the 
bank.  Afterward  the  testator  signed  a  form  of  cheque, 
which  was  on  the  back  of  the  note,  "  Pay  self  or  bearer 
£500."  The  note  was  then  delivered  to  the  wife ;  and 
before  the  expiration  of  the  seven  days'  notice  the  testator 
died.  The  practice  of  the  bank  was,  when  a  customer 
withdrew  part  of  a  sum  which  he  had  placed  on  deposit, 
to  give  him  a  fresh  note  for  the  remainder.  The  court 
adjudged  that  there  was  not  a  good  donatio  mortis  causa 
of  the  £500,  for  the  reason  that  the  cheque  was  not  payable 
until  after  his  death.  The  court  construed  the  effect  of 
the  notice  to  be  to  set  free  £2,700,  and  upon  that  fund 
the  testator  drew  his  cheque,  and  then  died  before  the 
fund  was  set  free.  "  Looking  at  the  whole  of  the  circum- 
stances of  the  case,  and  at  the  practice  of  the  bank,  which 
was  to  give  a  fresh  deposit  note  for  the  balance  when  a 
part  of  the  money  was  withdrawn,  it  does  not  appear  to 
me  that  the  delivery  of  the  note  was  made  with  the  inten- 
tion of  giving  either  it  or  the  money  to  the  wife.  The 
intention  was  to  deliver  the  cheque,  and  according  to  the 
authorities,  that  is  not  a  good  donatio  mortis  causal  '  If 
it  cannot  be  determined  with  reasonable  certainty  the 
proportion  given,  the  gift  will  be  void.^     So  a  gift  of  a 

1  See  Section  299.     See  Carpenter  r.  Soule,  88  ^^  Y.  251. 

2  Austin  V.  Mead,  L.  E.  15  Ch.  Div.  651 ;  S.  C.  50  L.  J.  Ch.  30 ;  43  L.  T.  117  ; 
28  W.  R.  891. 

3  Young  V.  Young,  80  N.  Y.  422. 


246  Gifts. 

note  with  a  reservation  of  the  interest  accruing  thereon 
for  the  life  of  the  donor  is  void ;  because  it  is  such  a  reser- 
vation of  the  control  over  the  thing  given  as  is  incom- 
patible with  the  validity  of  the  gift.^ 

277.  Memorandum. — So  money  already  in  the  donee's 
hands  may  be  given  to  him  by  the  owner  by  the  use  of  a 
memorandum  evidencing  its  amount  and  identity,  accom- 
panied by  an  explicit  declaration  of  the  donor's  intention.^ 
But  where  a  mother  on  her  death-bed  handed  to  her 
daughter  a  written  but  unsigned  memorandum,  express- 
ing her  wishes  concerning  the  disposition  of  certain  bonds 
and  other  personalty  to  M.,  saying,  ''That  is  my  will — that 
is  what  I  want  done ;"  and,  again,  pointing  to  a  drawer, 
"  There  are  the  papers — I  want  you  to  take  charge  of 
them ;"  and  this  daughter,  afterward,  but  in  her  mother's 
lifetime,  did  possess  herself  of  a  box  in  this  drawer  con- 
taining the  bonds  referred  to  in  the  memorandum ;  and 
this  memorandum  declared  that  the  interest  on  these 
bonds  was  to  be  held  for  M.  "  to  do  as  she  pleases,  but  not 
the  principal — that  is  to  be  held  intact,"  it  was  adjudged 
that  neither  the  property  mentioned  in  the  memorandum 
nor  the  bonds  in  the  box  could  be  sustained  as  a  gift  to 
M.,  for  two  reasons:  First,  because  the  memorandum  could 
not  be  considered  a  will,  it  not  beino;  siofned  bv  the  alle2:ed 
donor ;  second,  because  the  words  of  the  alleged  donor 
showed  that  she  did  not  intend  to  deliver  them  in  jorcesenti, 
but  intended  that  the  dausrhter  should  take  charo;e  of 
them  at  her  death."  Where  the  donee  had  already 
possession  of  the  fund  given,  and  the  donor  gave  him  a 
receipt  in  full  therefor,  this  was  held  to  make  it  a  valid 

^  Wirt's  Estate,  5  Dera.  (X.  Y.)  179.     The  soundness  of  this  case  may  M'ell  be 
doubted.     See  Section  202. 

^Champney  v.  Blanchard,  39  N.  Y.  Ill ;  Moore  v.  Darton,  7  E.  L.  &  Eq.  134. 
^  Trenholm  v.  Morgan,  28  S.  C.  268. 


Notes  and  Choses  in  Action.  247 

gift.^     But  a  memorandum  of  gift  indorsed  upon  an  un- 
delivered note  is  not  sufficient.^ 

278.  Nox-TKANSFERABLE  Insteument. — An  instru- 
ment evidencing  a  debt,  which  cannot  be  transferred  by 
indorsement  so  as  to  give  the  assignee  an  action  thereon, 
cannot  be  made  the  subject  of  a  gift.^ 

279.  Book  Account. — A  receipt  or  other  written  evi- 
dence, delivered  to  the  donee,  may  be  sufficient  to  show  a 
gift.  And  even  weaker  evidence  than  this  has  upheld  a 
gift.  Thus,  where  husband  transferred  to  his  wife  upon 
his  books,  a  book  account,  it  was  held  that  there  was  a 
good  gift  of  the  book  account.^  But  in  this  case  the  gift 
was  from  a  husband  to  his  wife,  to  replace  money  he  had 
received  from  her  by  reason  of  his  marital  rights ;  and 
this  had  much  to  do  with  the  decision.^ 

280.  Gift  of  Receipt  for  the  Instrument  Given. — 
The  question  has  arisen  whether  the  delivery  of  a  receipt 
for  a  note  is  a  sufficient  gift  of  the  note.  And  it  may  be 
remarked  that  little  or  no  difference  exists  in  the  validity 
of  a  gift,  by  a  delivery  of  a  receipt  for  it,  whether  the 
subject  of  the  gift  is  a  note  or  tangible  personal  property, 
as  a  chattel.  In  Virginia  the  case  was  met  and  decided  in 
1833.  There  the  donor  liekl  his  attorney's  receipt  for  a 
bond.  He  told  the  donee  he  could  have  the  bond,  and 
delivered  to  him  the  receipt.  At  the  time  of  such  delivery 
the  bond  was  not  with  the  donor  nor  near  him.  This  was 
held  to  be  a  valid  gift,  the  same  as  the  delivery  of  a  key 

1  Cliampnev  r.  Blancliard,  39  N.  Y.  111. 

2  Tiffany  i;/ciarke,  6  Gr.  Ch.  (Can.)  474. 
5  Ex  parte  Gerow,  10  N.  B.  512. 

*  Kerr  v.  Read,  23  Gr.  Ch.  525.     See  Champney  v.  Blancliard,  39  N.  Y.  111. 
5  See  George  i-.  Howard,  7  Price,  646.     Neufville  v.  Thomson,  3  Edw.  Ch.  92. 
See  Section  156. 


248  Gifts, 

to  a  trunk  had  been  held  a  valid  gift  of  the  contents  of 
the  trunk.  "  Sj^eaking  from  my  own  exj)erience,"  said 
Carr,  J.,  *'  I  should  say  an  attorney  requires  no-  better 
order  for  the  payment  of  money  he  has  collected  on  a 
bond  than  the  receipt  he  has  given  for  the  bond ;  when 
he  takes  this  in,  with  a  receipt  upon  it  for  the  money,  he 
feels  himself  safe."  In  this  case  the  receipt  was  not  as- 
signed to  the  donee,  nor  was  there  any  order  written  upon 
it  or  accompanying  it  directing  the  receiptor  to  deliver 
the  bond  or  pay  its  contents  to  the  donee.^ 

281.  Policy  of  Insurance. — A  policy  of  life  insur- 
ance, payable  to  his  estate  at  his  death,  may  be  made  the 
subject  of  a  gift  intei'  vivos  or  mortis  causa?  Thus,  where 
an  insured  person  made  a  voluntary  deed  of  an  assignment 
of  a  policy  of  insurance  upon  his  own  life  to  trustees  upon 
trust  for  the  benefit  of  his  sister ;  and  the  deed  was  de- 
livered to  the  trustees,  but  the  donor  kept  the  j^olicy,  no 
notice  of  the  assignment  being  given  to  the  insurance 
company  ;  and  he  afterward,  for  a  valuable  consideration, 
surrendered  the  policy  to  the  comj^any,  it  was  held  that 
the  trustees  could  compel  the  donor  to  give  to  them  se- 
curity to  the  amount  of  the  value  of  the  policy  to  secure 
the  payment  of  an  amount  equal  thereto  at  his  death.^   A 

^  Elam  V.  Keen,  4  Leigh,  333.  Wliere  the  donor  indorsed  a  receipt  for  bonds 
on  deposit  requesting  the  cashier  to  "let"  the  donee  "have  the  amount  of  the 
within  bill,"  it  was  held  to  be  a  good  gift  of  the  proceeds  of  the  bond:  Crook  v. 
First  JS^at.  Bank,  52  N.  W.  Kep.  113L 

2  Amis  V.  Wilt,  33  Beav.  619  ;  S.  C.  1  B.  &  S.  109  ;  7  Jur.  (N.  S.)  499;  30  L. 
J.  Q.  B.  31S  ;  9  W.  R.  691  ;  4  L.  T.  N.  S.  283  ;  Hayes  v.  Alliance,  etc.,  Ins.  Co., 
L.  R.  8  Ir.  149  (1881). 

^  Forsesque  v.  Baniett,  3  Myl.  &  K.  36  ;  Catholic  Knights  of  America  v.  Mor- 
rison, 16  K.  L  468.  See  Johnson  v.  Ball,  5  De  G.  &  Sm.  85;  S.  C.  21  L.  J.  N.  S. 
Ch.  210 ;  16  Jur.  538  ;  Searle  v.  Law,  15  Sim.  95  ;  S.  C.  15  L.  J.  Ch.  N.  S.  189  ; 
10  Jur.  191.  A  gift  of  a  policy  of  insurance,  unassigned,  was  upheld  in  a  case  at 
law,  on  the  ground  that  the  gift  of  the  policy  itself  was  good,  regardless  of  who 
might  be  entitled  to  the  money  due  upon  it :  Rummens  v.  Hare,  1  Ex.  Div.  169 ; 
S.  C.  46  L.  J.  Ex.  30 ;  34  L.  T.  407  ;  24  W.  R.  3S5.    But  where  the  policy  was 


Notes  and  Glioses  in  Action.  249 

father  effected  a  policy  of  insurance  on  his  own  life  in 
his  daughter's  name,  and  paid  the  premiums  himself,  but 
did  not  deliver  the  policy  to  her  ;  yet  this  was  held  to  be 
a  valid  gift.^ 

282.  Gift  of  Bond  or  Note  Merged  ix  a  Judgmeistt — 
Gift  of  Judgmeis^t, — A  note,  bond,  or  other  evidence  of 
debt,  upon  which  a  judgment  has  been  rendered,  cannot  be 
made  the  subject  of  a  gift.  The  gift  of  the  instrument 
does  not  ojoerate  as  an  equitable  assignment  of  the  judg- 
ment. So  the  gift  of  a  judgment  cannot  be  made  with- 
out an  actual  assignment  of  it,  or  by  the  execution  and 
delivery  of  a  deed  of  assignment  thereof.  There  is  no 
other  way  in  which  a  judgment  can  be  given. ^ 

283.  Statutory  Regulations  Effecting  Transfers. 
— Occasionally  a  gift,  in  all  other  respects  perfect,  must 
fail  because  some  positive  statute  touching  the  transfer  of 
the  thing  given  has  not  been  complied  with.  Phases  of 
this  question  have  been  referred  to  under  the  head  of  gift 
of  stock,  and  these  eases  are  strictly  analogous  to  those 
now  given,  and  the  j^riuciple  governing  the  gift  of  such 
stock  is  applicable  here.  We  can  illustrate  this  part  of 
the  discussion  by  a  case  of  turnj^ike  bonds.  One  Law 
made  a  voluntary  assignment  of  turnpike  bonds,  and  de- 
livered them,  but  no  transfer  of  them  was  made  upon  the 
books  of  the  turnpike  company.  By  statute,  in  order  to 
make  a  transfer  of  such  bonds  effectual,  the  assignment 
must  have  been  indorsed  or  Avritten  under  or  annexed  to  the 

unassigned,  and  afterward  devised  by  will,  it  was  held  that  the  donee  took  under 
the  will,  and  not  as  a  donee  of  a  gift  inter  vivos  :  Howes  v.  Prudential  Assurance 
Co.,  49  L.  T.  N.  S.  133.  In  this  case  the  wife  paid  the  premiums  out  of  her  own 
separate  estate,  from  the  date  of  the  delivery  of  the  policy. 

1  Weston  I'.  Richardson,  47  L.  T.  N.  S.  514  ;  Crittenden  v.  Phoenix,  etc.,  Ins. 
Co.,  41  Mich.  442. 

*  Patterson  v.  Williams,  LI.  &  G.  95  (Irish). 


250  Gifts. 

bonds,  and  signed  in  the  presence  of,  and  attested  by  one 
or  more  credible  witnesses ;  and  the  transfer  was  to  be 
produced  and  notified  to  the  clerk  or  treasurer  ^  of  the 
trustees  or  commissioners  of  the  road,  within  two  calendar 
months  next  after  the  date  thereof,  who  were  to  enter  the 
same  in  a  book  to  be  kept  for  that  purpose,  and  such 
transfer  was  then  to  entitle  the  assignee  to  the  full  benefit 
of  the  securities.  In  this  particular  instance  this  transfer 
was  not  made,  and  the  gift  was  held  to  be  incom23lete. 
The  court  said  that  if  the  donor  had  declared  in  writing 
that  he  would  hold  the  securities  in  trust  for  the  donee, 
that  declaration  would  have  been  binding  upon  him  and 
his  personal  representatives  ;  but  instead  of  doing  this,  he 
attempted  to  assign  them,  and  there  was  a  complete 
failure  in  this  respect." 

284.  Note  Given  to  Equalize  Distribution  of  an 
Estate — Legacy  Duty. — It  is  a  device  resorted  to  occa- 
sionally that  a  testator  will  give  his  note  to  a  child,  in 
order  to  give  it  an  equal  distribution  of  his  estate.  Such 
a  note,  however  good  the  intentions  of  the  donor  were, 
cannot  be  enforced  against  his  estate.^  Such  a  note  given 
for  the  purpose  of  avoiding  the  legacy  duty  is  equally 
insufficient.'^ 

285.  Check  Operates  as  an  Equitable  Assignment 
OF  A  Special  Deposit. — The  actual  delivery  of  a  certifi- 
cate of  special  deposit  may  be  dispensed  with  if  a  check 

^  Such  is  tbe  language  of  the  report,  and  evidently  of  the  statute. 

2  Searle  v.  Law,  15  Sim.  95 ;  S.  C.  15  L.  J.  Ch.  K.  S.  189  ;  10  Jur.  191.  For  a 
declaration  of  trust  see  Collinson  v.  Patrick,  2  Keen,  123  ;  S.  C.  7  L.  J.  Ch.  N.  S. 
83;  Howes  v.  Prudential  Assurance  Co.,  49  L.  T.  N.S.  133. 

^  Parish  v.  Stone,  14  Pick.  198  ;  S.  C.  25  Am.  Dec.  378  (contra,  Bowers  v.  Hurd, 
10  Mass.  427);  West  v.  Gavins,  74  Ind.  265  (criticising  Mallett  v.  Page,  8  Ind. 
364). 

*  Holliday  v.  Atkinson,  5  Barn.  &  C.  501 ;  S.  C.  8  Dowl.  &.  Ryl.  163. 


Notes  and  Choses  in  Action.  251 

be  given  upon  the  bank  for  the  exact  amount  (or  perhaps 
a  part  of  it)  described  in  the  certificate,  and  specifying 
that  it  is  for  the  amount  therein  described.  Thus  a  donor 
had  in  bank  a  special  deposit,  and  two  hours  before  his 
death  signed  a  check  directed  to  the  bank,  properly  dated, 
drawn  as  follows  :  "  Pay  to  the  order  of  R.  K.  the  amount 
of  deposit,  and  charge  to  my  account."  No  amount  was 
designated,  and  the  donor  had  no  sum  of  money  in  the 
bank  except  that  on  special  deposit.  He  delivered  the 
check  to  the  donee  with  proper  words  of  gift.  At  the 
time  of  the  gift  the  certificate  of  dejjosit  w^as  in  the  store 
of  the  donee,  where  the  donor  had  been  a  clerk,  in  a 
drawer.  The  gift  was  deemed  valid,  upon  the  ground 
that  the  check  operated  as  an  equitable  assignment  of  the 
certificate,  and  consequently  an  assignment  of  the  fund.^ 

286.  Personal  Representative  Collecting  Pro- 
ceeds OF  Note  Given. — If  the  personal  representative 
of  the  donor  collects  the  proceeds  of  a  note  that  has  been 
the  subject  of  a  valid  gift,  the  donee  may  maintain  a 
cause  of  action  against  the  estate  for  the  amount  collected.^ 

287.  To  Whom  Payment  Made. — If  the  gift  or  an 
obligation  is  valid,  the  obligor  must  pay  the  money  due 
thereon  to  the  donee ;  and  if  he  jitay  it  to  the  donor  he 
will  be  liable  to  the  donee  for  the  amount  paid.^ 

288.  Donor's  Liability  on  His  Indorsement. — Sup- 
pose a  note  is  payable  to  the  donor  or  order,  and  he,  desiring 
to  make  a  gift  of  it  to  the  donee,  indorse  it  to  him.  This 
is  a  valid  gift.  But  suppose,  farther,  that  the  maker  of 
the  note  fails  to  pay  it ;  can  it  be  collected  from  the  do- 

1  Kurtz  V.  Smither,  1  Dem.  (N.  Y.)  399. 

2  Westerle  v.  De  Witt,  36  N.  Y.  340 ;  S.  C.  2  Trans.  App.  332 ;  93  Am.  De&  517. 

3  Roberts  v.  Lloyd,  2  Beav.  376. 


252  Gifts. 

iior  ?  We  are  inclined  to  the  opinion  that  it  cannot  be. 
Thus  to  a  declaration  on  a  bill  of  exchange,  by  an  in- 
dorsee against  the  indorser,  the  defendant  pleaded  that  he 
indorsed  the  bill  to  the  plaintiff  without  having  received 
any  value  or  consideration  whatsoever  for  or  in  respect  for 
the  indorsement,  and  that  he  had  not  at  any  time  had  or 
received  any  value  or  consideration  whatsoever  for  or  in 
respect  of  such  indorsement ;  and  this  plea  was  adjudged 
sufficient  after  verdict/  So  in  Maine  it  was  decided  that 
the  donor's  estate  was  not  liable  on  his  indorsement,  even 
under  a  claim  to  equalize  the  distribution  of  his  estate.^ 
But  could  a  second  indorsee  for  value  recover  from  the 
first  indorsee  and  from  his  indorser  ?  Undoubtedly  he 
could  from  his  immediate  indorser,  or  the  first  indorsee ; 
and  could  also  from  the  first  indorser  or  donor,  if  he  had 
no  notice  of  a  want  of  consideration  for  the  first  indorse- 
ment at  the  time  he  took  it,  before  due,  for  value.  If  the  do- 
nor be  compelled  to  pay  the  last  indorsee,  he  could  recover 
from  the  donee  the  amount  he  pays. 

289.  Gift  of  Expectancy. — It  has  been  held  that  a 
gift  of  an  expectancy  in  money  held  by  trustees  was  void. 
This  was  in  an  instance  where  a  testator  bequeathed  a 
sum  of  money  to  trustees  in  trust  for  his  daughter  for  life, 
and,  in  case  she  died  without  leaving  issue,  for  her  next 
of  kin,  exclusive  of  her  husband.  During  the  lifetime 
of  the  daughter,  her  mother,  as  presumptive  next  of  kin, 
by  a  voluntary  deed  assigned  her  expectant  interest  in 
reversion  to  the  husband.  It  was  decided  that  on  the 
death  of  the  daughter,  without  leaving  issue,  the  assign- 

lEaston  v.  Pratchett,  2  Cr.  M.  &  R.  542  ;  S.  C.  5  Tyrwh.  1129.  In  Tviwhiit's 
repoit,  however,  it  is  said  by  Denraan,  C.  J.,  thai  "  tliere  is  no  doubt  that  the  plea 
would  have  been  bad  on  special  demurrer,  but  after  the  verdict  it  must  be  taken 
that  there  is  no  consideration  binding  in  law."  The  same  case  reported  at  length 
before  it  was  affirmed  as  above  reported  in  1  Cr.  M.  &  R.  798. 

2  Weston  V.  Ilight,  17  Me.  237. 


Notes  and  Choses  in  Action.  253 

ment  operated  only  as  an  agreement  to  assign,  and,  conse- 
quently, being  voluntary,  a  court  of  equity  would  not 
enforce  it.^ 

290.  CoXSIDEEATTOJf  FOR  THE  NoTE  GiVEX INADE- 
QUACY OF  Consideration. — Whenever  there  is  a  con- 
sideration for  the  note  given  by  the  alleged  donor  to  the 
donee,  the  transaction  ceases  to  be  one  of  gift,  but  one  of 
contract.  The  inadequacy  of  the  consideration  is  imma- 
terial. Thus,  where  an  old  man  executed  his  note  in 
the  sum  of  $10,000  in  consideration  that  the  payee  would 
name  his  newly-born  son  after  the  maker,  and  the  father 
gave  the  child  the  maker's  name,  in  pursuance  of  which 
he  gave  him  the  note,  as  promised,  this  was  held  to  raise 
a  sufficient  consideration  to  sustain  the  note.  Speaking 
of  the  adequacy  of  the  consideration,  the  court  said : 
"No  person  in  the  world  other  than  the  promisor  can 
estimate  the  value  of  an  act  which  arouses  his  gratitude, 
gratifies  his  ambition,  or  pleases  his  fancy.  If  there  be 
any  consideration  at  all,  it  must  be  allotted  the  value  the 
parties  have  placed  upon  it,  or  a  conjectural  estimate, 
made  arbitrarily  and  without  the  semblance  of  a  guide, 
must  be  substituted  by  the  courts."  ^  "  Mere  inadequacy 
in  value  of  the  thing  bought  or  paid  for,"  said  another 
court,  "  is  never  intended  by  the  legal  expression  want  or 
failure  of  consideration.  This  only  covers  either  total 
worthlessness  to  all  parties  or  subsequent  destruction, 
partial  or  complete."  ^ 

iMeekr.  Kettlewell,  1  Ph.  342;  S.  C.  1  Hare,  464;  13  L.  J.  N.  S.  Cli.  28; 
11  L.  J.  N.  S.  Ch.  293,  464  ;  7  Jur.  1120 ;  6  Jur.  550.  It  may  be  here  noted  that 
a  voluntary  assignment  by  deed  of  an  equitable  reversionary  interest  in  personal 
property  is  valid :  Voyle  v.  Hughes,  2  Sra.  &  G.  18  ;  S.  C.  18  Jur.  341 ;  23  L.  .1. 
Ch.  238.  The  deed  must  be  delivered :  Re  Way,  10  Jur.  N.  S.  836 ;  34  L.  J.  Ch. 
49;  13  W.  R.  149. 

=  Wolford  V.  Powers,  85  Ind.  294. 

'Cowee  V.  Cornell,  75  N.  Y.  91 ;  S.  C.  31  Am.  Rep.  428.    Other  cases  are  cited 


254  Gifts. 

291.  Desire  or  Intention  to  Make  a  Gift  Not 
Sufficient. — A  mere  desire  or  intention  to  make  a  gift 
of  a  chose  in  action  can  never  be  taken  for  the  act  itself. 
Thus,  where  an  alleged  donor  told  the  person  who  had 
the  possession  of  his  notes  that  he  desired  |500  of  the 
notes,  or  $500  of  the  money  when  collected  upon  them, 
to  be  jDaid  over  to  the  claimant,  who  had  been  for  many 
years  a  member  of  his  family,  but  neither  the  proceeds 
nor  the  notes  were  either  assigned  or  delivered  to  her  until 
after  his  death,  the  transaction  was  adjudged  not  to  be 
a  gift.^  Bonds  payable  to  bearer  were  purchased  by  an 
alleged  donor  and  were  kept  by  him  up  to  the  time  of 
his  death.  He  cut  ofi"  and  collected  the  coupons  attached 
to  them  as  they  fell  due,  except  those  falling  due  during 
six  months  prior  to  his  death.  At  the  time  he  purchased 
the  bonds,  he  said  that  he  wanted  them  for  the  donee, 
and  afterward  he  directed  his  banker,  who  negotiated  the 
purchase,  to  have  them  registered  in  the  donee's  name. 
The  banker  took  the  bonds  to  the  office  of  the  company 
issuing  them,  and  the  name  of  the  donee  was  indorsed 
upon  each  bond  with  the  date  of  the  indorsement  and  the 
name  of  the  transfer  agent.  It  was  not  shown  that  the 
donee  had  any  knowledge  of  the  transaction,  nor  was 
the  effect  of  the  registration  shown.  It  was  held  that 
there  was  no  gift  because  there  was  no  delivery  of  the 
bonds.^  Even  a  refusal  to  receive  the  money  due  on  a 
debt  owed  by  the  donee  to  the  donor,  accompanied  by 
declarations  of  the  donor  that  he  never  intended  to  collect 
it,  is  not  such  a  transaction  as  will  amount  to  a  gift.^ 

in  Wolford  v.  Powers,  supra,  making  an  excellent  collection  on  this  point.  See 
Lindell  v.  Rokes,  GO  Mo.  249;  S.  C.  21  Am.  Rep.  395;  Parks  v.  Francis,  50  Vt. 
626 ;  28  Araer.  Rep.  517  ;  Worth  v.  Case,  42  N.  Y.  362 ;  affirming  2  Lan.^.  264. 

1  Appeal  of  Fross,  105  Pa.  St.  258;  Gason  v.  Rich,  19  L.  R.  Irish,  391. 

2  Estate  of  Crawford,  113  N.  Y.  560;  Hooper  v.  Goodwin,  1  Swan,  485;  S.  C. 
1  Wils.  212. 

^McGuire  v.  Adams,  8  Pa.  St.  286;  Campbell's  Estate,  7  Pa.  St.  100. 


Notes  and  Choses  in  Action.  255 

292.  Delivery  Essential  to  Validity  of  Gift. — 
In  all  cases  of  a  gift  of  a  written  chose  in  action,  delivery 
is  as  essential  to  the  validity  of  the  gift  as  the  delivery  of 
a  chattel.  The  same  rules  applicable  to  a  delivery  of  a 
chattel  are  applicable  to  a  delivery  of  such  chose  in 
action.^  This  is  very  well  illustrated  by  a  case  in  New 
York.  There  a  wife  owned  two  notes,  the  larger  one  of 
which  was,  at  the  time  of  her  death,  held  by  H.,  with 
her  consent,  as  collateral  security  for  money  loaned  to  her 
husband ;  the  smaller  one  being  in  a  bureau  in  the  dwell- 
ing-house. A  day  or  two  before  her  death  several  persons 
heard  her  say  to  her  husband,  "  You  may  have  the 
money"  or  "  all  the  money."  Although  these  notes  were 
not  "  money,"  yet  the  court  decided  that,  as  it  did  not 
appear  that  she  had  any  money  or  proj^erty  except  the 
notes,  she  must  have  intended  to  convey  them  by  the  use 
of  that  term,  and  that  the  gift  of  the  larger  note  was  in- 
valid, no  delivery  being  shown  and  the  note  being  in  the 
hands  of  a  third  person  as  her  property  ;  but  the  gift  of 
the  smaller  note  was  valid,  for  it  was  in  a  bureau  in  the 
donor's  house  and  presumptively  accessible  to  him.^  The 
delivery  may  be  to  a  third  person  for  the  donee.^ 

293.  Redelivery  of  Note. — The  effect  of  a  redelivery 
to  the  donor  of  the  note  given,  is  the  same  as  a  redelivery 
of  a  chattel  given  ;  and,  perhaps,  no  stronger  presumption 
against  the  validity  of  the  claim  that  there  was  a  gift  is 
raised  in  the  one  case  than  in  the  other.  If  the  gift  is  a 
do7iatio  mortis  causa,  a  resumption  of  possession  by  the 
donor  is  a  revocation  of  the  gift ;  and  perhaps  this  is  true, 
even  though  the  donor  take  back  the  thing  given  at  the 

»  Hatton  V.  Jones,  78  Ind.  466. 
2  Stevens  v.  Stevens,  2  llun,  470. 

^  Jones  V.  Deyer,  16  Ala.  221;  Gammon  Theological  Seminary  v.  Robbins, 
128  Ind.  85. 


256  Gifts. 

request  of  tlie  donee,  for  a  particular  purj^ose,  and  agrees 
to  act  as  his  agent,  but  in  the  case  of  a  gift  inter  vivos, 
a  repossession  by  the  donor  does  not  annul  the  gift.^  So 
where  a  note  given  as  a  gift  inter  vivos  was  redelivered  to 
the  donor  by  the  donee  under  an  arrangement  that  the 
former  might  collect  thereon  such  an  amount  as  he  might 
need  for  his  support  in  case  he  became  poor,  the  gift  was 
upheld.^ 

294.  Gift  by  Deed. — A  gift  of  a  chose  in  action  may 
be  made  by  a  deed,  duly  signed,  sealed,  and  delivered,  and 
in  such  an  instance  a  delivery  of  the  instrument  given  is 
not  necessary  to  the  validity  of  the  gift.  In  this  way  a 
debt  may  be  forgiven,  though  the  donor  and  creditor  re- 
tain j)ossession  of  the  instrument  evidencing  the  debt.^  In 
one  instance  the  Court  of  Chancery,  in  the  administration 
of  assets,  enforced  against  the  estate  voluntary  assignments, 
made  by  the  testator,  of  annuities,  mortgage  debts,  and 
policies  of  a.ssurance,  of  which  assignments  no  notice  had 
been  given  in  his  lifetime  to  the  mortgagors  or  grantors, 
such  assignments  containing  covenants  for  further  assur- 
ance by  the  testator,  his  executors  and  administrators.* 
But  it  has  been  held  that  neither  a  voluntary  assignment 
by  deed  of  a  mortgage  debt,  accompanied  by  a  grant,  not 
specifying  the  particular  estate,  but  of  all  estates  held  in 
mortgage,  and  by  a  covenant  for  further  assurance,  and 
without  delivery  of  the  mortgage  deed  or  notice  to  the 
mortgagor,  nor  the  voluntary  assignment  of  a  policy  of 
assurance  retained  in  the  hands  of  the  assignor,  and  with- 
out notice  given  to  the  grantor,  though  accompanied  by  a 

^  Grover  v.  Grover,  24  Pick.  261 ;  Curtiss  r.  Earrns,  3S  Hun,  165. 
2  Marston  v.  Marston,  64  N.  H.  146. 

^  Blakely  v.  Brady,  2  Dr.  &  Wal.  311  ;  Gannon  v.  White,  2  Ir.  Eq.  R.  207  ;  For- 
tesque  v.  Barnett,  3  Myl.  &  K.  86 ;  2  L.  J.  Ch.  N.  S.  106. 
*Cox  V.  Barnard,  8  Hare,  310. 


Notes  and   Choses  in  Action.  257 

covenant  for  further  assurance,  can  be  considered  as  a 
complete  and  effectual  assignment  to  be  acted  upon  and 
enforced  by  the  assignee  without  any  further  or  other  act 
to  be  done  by  the  assignor.^  The  owner  of  certain  funds, 
standing  in  his  name  on  the  books  of  a  bank,  by  letter 
directed  the  bank  to  carry  a  part  of  the  funds  to  the  ac- 
count of  certain  persons  as  trustees  for  his  wife,  and  after 
her  decease,  for  his  son,  and  other  parts  thereof  to  the 
account  of  certain  persons  as  trustees  for  his  son,  and  such 
sums  were  accordingly  carried  over  by  the  bankers  to  the 
account  of  such  persons  in  their  books,  and  the  dividends 
were,  from  time  to  time,  carried  to  the  same  accounts ;  but 
the  testator  never  communicated  the  facts  to  the  trustees, 
and  there  was  some  evidence  that  the  testator  had  directed 
the  transfer  under  an  impression  that  he  should  be  able, 
by  that  means,  to  evade  the  legacy  duty,  and  that  he  had 
shown  an  intention  to  exercise  some  acts  of  ownership  over 
the  funds ;  the  court  declared  the  gifts  void,  and  that  the 
testator  might  at  any  time  have  revoked  them.^  But  where 
A  by  a  voluntary  deed  assigned  to  B  all  her  personal 
estate,  and  appointed  him  her  attorney  to  recover,  receive, 
and  give  receipts  for  it,  it  was  held  that  after  her  death 
that  two  promissory  notes,  one  payable  to  A  and  the  other 
to  A  or  her  order,  passed  to  the  donee.^ 

295.  Production  of  Note,  Effect  Upon  Presump- 
tion OF  Ownership. — Where  the  code  required  an  action 
to  be  brought  in  the  name  of  the  real  party  in  interest,  it 
was  held  that  the  possession  of  an  unindorsed  negotiable 
note  payable  to  bearer  raised  a  presumption  that  the  person 

1  Wardr.  Andland,  8  Beav.  201 ;  S.  C.  14  L.  J.  N.  S.  Ch.  145;  9  Jur.  384. 

■■'  Gaskell  T.  Gaskell,  2  Y.  &  J.  502. 

'  Richardson  v.  Richardson,  3  L.  R.  Eq.  680 ;  36  L.  J.  Ch.  653.    In  Mississippi 
in  1866  a  gift  of  a  book  account  could  only  be  made,  after  it  was  due,  except  bv 
a  release  under  seal :  Young  v.  Power,  41  Miss.  197.  So  in  1847  in  Pennsylvania: 
Campbell's  Estate,  7  Pa.  St.  100. 
17 


258  Gifts. 

producing  it  at  tlie  trial  was  the  real  and  rightful  owner.^ 
So  the  possession  of  a  promissory  note,  indorsed  in  blank 
by  the  payee,  is  prima  facie  proof  of  ownershij^  in  the 
holder,  even  though  the  validity  of  the  gift  of  the  note  is 
in  controversy.^  But  where  the  action  was  brought  by 
the  administrator  against  the  donee  because  of  the  alleged 
conversion  of  United  States  bonds  belonging  to  the  dece- 
dent; and  the  donee,  as  defendant,  in  her  answer  ad- 
mitted the  allegations  with  reference  to  the  ownership  of 
the  bonds  in  the  lifetime  of  the  alleged  donor,  but  averred 
that  prior  to  his  decease  and  shortly  before  his  death  that 
he  gave  them  to  her  as  a  donatio  mortis  causa,  and  that 
she  then  "took  possession  thereof  and  kept  the  same  con- 
tinuously in  her  possession  until  and  after  the  death  of 
the  said  intestate,  and  that  they  have  ever  since  remained 
in  her  possession  and  are  now  her  property,  and  have 
never  formed  any  j^art  of  the  estate  whereof  the  said  in- 
testate died  possessed,"  it  was  held  that  the  burden  rested 
upon  her  to  prove  the  validity  of  the  gift,  although  title 
to  the  bonds  passed  by  mere  delivery.  "  This  state  of  the 
pleadings,"  said  the  court,  "  devolved  upon  the  defendant 
the  burden  of  establishing  the  alleged  gift.  Such  gifts 
are  not  presumed.  '■Nemo  donare  facile presumitur^  is  a 
maxim  of  the  law  applicable  to  the  case,  and  where  a  gift 
causa  mortis  is  alleged,  the  presumption  being  against  it, 
clear  proof  on  the  part  of  the  claimant  is  required.  .  .  . 
The  plaintiff  was  entitled  to  stand  upon  the  admission  of 
the  answer  that  the  intestate  was  the  owner  of  the  bonds 
in  his  lifetime.  That  gave  him  a  prima  facie  case,  be- 
cause the  defendant  herself  admitted  such  ownership,  and 
only  asserted  a  right  by  virtue  of  the  alleged  gift.     We 

1  Kiff  V.  Weaver,  94  N.  C.  274. 

2  Bedell  v.  Carll,  33  N.  Y.  581;  Slieppard  v.  Earle,  25  Hun,  317  ;  Dean  v.  Cor- 
bett,  51  N.  Y.  Supr.  Ct.,  p.  107. 


Notes  and   C hoses  in  Action.  259 

think  it  was  lier  duty  to  have  proved  the  gift,  otherwise 
the  plaintiff  would  be  entitled  to  recover."  ^  So  in  Georgia 
the  delivery  of  a  non-negotiable  note,  without  more,  is  not 
sufficient  to  prove  a  gift.^  If  the  donee  maintained  a  close 
relationship  to  the  donor,  as  wife  to  a  husband,  or  admin- 
istrator or  executor  to  a  decedent's  estate,^  or  a  household 
servant  to  a  master,  the  presumption  of  a  gift  is  not  raised 
by  a  mere  production  of  the  note  or  instrument  alleged  to 
have  been  given.'*  This  is  particularly  true  if  the  person 
claiming  to  be  donee  had  access  to  the  alleged  donor's 
papers.^ 

296.  Forgiving  Debt. — There  is  nothing  to  prevent 
a  donor  giving  to  the  donee  a  debt  the  latter  owes  him  ; 
or,  in  other  words  to  forgive  him  his  debt.  This  has 
been  accomplished  by  delivery  of  a  receipt  for  the  part 
given  where  the  whole  debt  was  not  given.  Thus  a  father 
held  a  bond  secured  by  mortgage  executed  by  his  son. 
With  the  intention  of  giving  him  a  portion  of  the  mort- 
gage debt,  the  father  executed  and  delivered  to  him  a 
receipt  therefor,  containing  a  provision  that  the  sum  stated 
should  be  indorsed  on  the  mortgage.  It  was  contended 
that  this  was  not  a  valid  gift,  in  view  of  the  fact  that  the 
indorsement  was  not  made,  but  the  court  decided  that  it 
was,  and  operated  to  extinguish  so  much  of  the  debt  as 
was  specified  in  the  receipt,  and  that  the  agreement  to  in- 
dorse did  not  make  it  a  mere  executory  promise,  and  that 
its  performance  was  not  essential  to  the  gift.  In  this  ease 
there  could   be  no  delivery  of  the  bond  and  mortgage  ; 

^Conklin  v.  Conklin,  20  Hun,  27S ;  Drischler  v.  Van  den  Henden,  49  N.  Y. 
Supr.  Ct.  50S ;  The  Matter  of  O'Gara,  15  N.  Y.  St.  Repr.  737. 

^  Hill  V.  Sheibley,  64  Geo.  529. 

'Cowee  V.  Cornell,  75  N.  Y.  91 ;  S.  C.  31  Am.  Rep.  428. 

*  Estate  of  O'Gara,  15  N.  Y.  St.  Rep.  737;  Conklin  v.  Conklin,  20  Ilun,  278. 

^Grey  v.  Grey,  47  N.  Y.  552,  reversing  2  Lans.  173;  Love  v.  Dilley,  64  Md. 
2.38 ;  S.  C.  1  East.  Rep.  697 ;  6  Atl.  Rep.  168. 


260  Gifts. 

because  the  entire  amount  therein  named  was  not  for- 
given ;  for  "  the  character  of  the  gift,"  said  the  court, 
"  dictates  the  manner  of  its  delivery."  ^  If  the  payee  de- 
liver to  the  maker  his  note  as  a  forgiveness  of  the  debt, 
the  gift  is  a  good  one  and  binding.^  A  common  method 
of  making  a  gift  is  to  cancel  the  evidence  of  it  and  de- 
liver such  evidence  of  the  debt  to  the  obligor ;  or,  with- 
out cancellation,  deliver  to  him  such  evidence,  accom- 
panied by  a  declaration  that  the  gift  is  forgiven.  There  is 
no  reason  why  such  a  gift  is  not  as  valid  as  a  gift  of  a 
note  of  another  by  the  donor  to  the  donee.  Thus  it  was 
said  that  a  delivery  up  of  mortgage  deeds  did  not  cancel 
the  debt ;  but  the  delivery  up  of  such  deeds  and  of  a  bond, 
given  at  the  time  of  the  mortgage,  for  the  purpose  of  re- 
leasing and  acquitting  the  debt,  in  case  the  donor  should 
not  recover  from  his  present  illness,  was  an  effectual  do- 
natio mortis  causa;  but  the  exact  question  was  not  de- 
cided.^ Where  a  wife  borrowed  money  of  her  husband 
for  the  benefit  of  her  separate  estate,  it  was  held  that  the 
husband  could  discharge  the  debt  thus  created,  by  destroy- 
ing the  evidence  of  the  debt  and  declaring  that  he  for- 
gave it,  intending  thereby  to  give  it  to  her.^  So  where 
the  holder  of  a  due-bill,  drawing  interest,  delivered  it, 
when  dangerously  ill,  to  her  servant,  with  an  expression 
to  the  effect  that  she  wished  the  debt  to  be  cancelled ;  and 
ten  days  thereafter  she  died  from  such  illness,  it  was  held 
that  there  was  a  good  donatio  mortis  causa,  or  a  forgive- 

1  Carpenter  r.  Soule,  88  N.  Y.  251 ;  Lee  v.  Eoak,  11  Gratt.  182. 

''Stewart  v.  Hidden,  13  Minn.  43.  For  a  case  of  gift  of  the  debt  to  tlie  debtor's 
wife  see  Hackney  v.  Vrooman,  62  Barb.  650.  (But  see  Ward  v.  Turner,  2  Ves.  Sr. 
4&\,  arguendo  contra)  ;  Richards  v.  Syms,  2  Atk.  319;  S.  C.  3  Barn.  90 ;  2  Eq. 
Cas.  Abr.  617  ;  Young  v.  Power,  41  Miss.  197. 

3 Hurst  r.  Beach,  5  Madd.  351  ;  Campbell's  E-^(ate,  7  Pa.  St.  TOO. 

*  Gardner  v.  Gardner,  22  'Wend,  526,  reversing  7  Paige,  112,  but  not  on 
this  point ;  Darland  v.  Taylor,  52  la.  503 ;  Blake  v.  Kearney,  Manning  (La.) 
320. 


Notes  and  Choses  Iti  Action.  261 

ness  of  the  debt.^  So  where  a  mortgagee  delivered  up  the 
bond  and  mortgage  securing  its  payment  to  the  mortgagor^ 
with  the  intention  exj^ressed  of  cancelling  the  debt,  it  was 
held  to  be  a  good  gift.^  But  where  a  young  woman,  who 
had  lived  with  her  mother  five  years,  and  had  never  paid 
anything  for  her  board,  a  little  while  before  her  death 
gave  her  mother  a  bond  for  £500,  and  a  note  for  £100, 
which  were  debts  owing  to  her  from  other  persons,-  it  was 
decreed  that  the  bond  and  note  was  not  a  satisfaction  of 
the  board  debt ;  for  one  debt  cannot  be  a  satisfaction  of 
another  debt,"  If  the  holder  cancel  a  note  and  deliver  it 
up,  the  transaction  amounts  to  a  forgiveness  of  the  debt.* 
A  mortgagee  wrote  letters  to  the  mortgagor,  and  persons 
interested  under  him,  containing  the  expressions  "  I  now 
give  this  gift,  to  become  due  at  my  death,  unconnected 
with  my  will ;"  "  I  hereby  request  my  executors  to  cancel 
the  mortgage  deed,"  etc.  ;  "  I  again  direct  and  promise 
that  my  executors  shall  comply  with  my  former  request, 
that  is,  to  cancel  all  deeds  and  papers  I  may  have  charge- 
able on  the  K.  estate."  It  was  claimed  that  this  consti- 
tuted a  gift  or  operated  as  a  declaration  of  trust ;  but  the 
court  held  that  it  did  not.^  The  taking  back  of  a  note 
or  obligation,  for  payment  of  money  by  the  alleged 
donor  to  the  alleged  donee  raises  a  ^;r?j?m/a(?ie  presump- 
tion of  a  loan,  even  as  between  a  father  and  son ;  but  that 
presumption  may  be  rebutted  by  showing  that  the  trans- 
action was  in  fact  a  gift  of  the  money  passing  between 
them ;  and  even  though  the  original  transaction    was  a 

1  Moore  v.  Darton,  4  De  G.  &  Sra.  517  ;  S.  C.  20  L.  J.  Ch.  (N.  S.)  626 ;  7  E.  L. 
«&Eq.  134. 

2  Richards  v.  Syms,  2  Atk.  319  ;  S.  C.  Barns.  Cli.  90  (1740). 
=*  Clavering  v.  Yorke,  2  Colly.  363. 

*  Larkin  v.  Hardenbrook,  90  N.  Y.  333 ;  S.  C.  43  Am.  Rep.  176. 
^Scales  V.  Maude,  6  De  G.,  M.  &  G.  43  ;  S.  C.  1  Jiir.  N.  S.  1147  ;  25  L.  J.  Ch. 
433. 


262  Gifts. 

loan,  yet  the  conduct  of  the  loaner  may  be  such  toward 
the  donee  as  to  show  a  forgiveness  of  the  debt ;  in 
which  event  a  court  of  chancery  has  full  power  to  com- 
pel a  cancellation  of  the  obligation  given.  Transactions 
of  this  kind  are  not  uncommon  w^here  the  father  desires 
to  control  the  actions  and  conduct  of  his  son.^  Where  a 
donor  on  his  death-bed  delivered  a  memorandum  in  the  na- 
ture of  a  note,  to  A  to  deliver  to  the  donee,  the  gift  was  up- 
held as  a  good  donatio  causa  mortis}  But  mere  voluntary 
declarations  indicating  the  intention  of  the  creditor  to  for- 
give or  release  a  debt,  do  not  constitute  a  release  in  equity 
any  more  than  they  do  at  law.^  An  indorsement,  however, 
upon  a  security  held  by  the  donor  of  a  forgiveness  of  a 
part  of  the  debt  is  a  good  gift  of  that  part  without  a  de- 
livery of  the  security  to  the  donee,  if  he  is  informed  of 
the  gift  and  accepts  it.* 

297.  Receipt  for  Debt. — If  the  debt  consists  of  an 
account,  the  holder  of  it  may  effectually  give  it  to  the 
debtor  by  delivering  to  him  any  evidence  of  the  debt 
existing ;  and  if  there  be  none,  then  by  a  delivery  of  a 
receipt  in  full,  or  for  the  part  given.  So  if  the  holder  of 
the  account  write  upon  a  copy  of  it  that  it  is  cancelled  by 
a  gift  thereof  to  the  debtor,  and  sign  and  deliver  the  same 

1  Flower  v.  Marten,  2  Myle  &  Cr.  459  ;  Wekett  v.  Kahy,  3  Bro.  P.  C.  IG  ;  Pad- 
more  V.  Gunning,  7  Sim.  644. 

2  Moore  v  Darton,  4  De  G.  &  Smnle,  517. 

3  Cross  V.  Spring.  6  Hare,  552 ;  S.  C  18  L.  J.  Ch.  N.  S.  204.  See  Aston  v.  Pye,  5 
Ves.  350,  note  ;  Byrn  v.  Godfrey,  4  Ves.  6  ;  Reeves  v.  Brymer,  6  Ves.  516.  But  see 
Eden  v.  Smyth,  5  Ves.  341,  and  Reeves  v.  Brymer,  6  Ves.  516,  two  doubtful  cases. 
See,  also.  Cross  v.  Cross,  1  Ir.  L.  R.  Ch.  Div.  389 ;  Nelson  v.  Cartmel,  6  Dana,  8 ; 
Young  ?•.  Power,  41  Miss.  197  ;  Demmon  v.  McMahin,  37  Ind.  241. 

*  Green  v.  Langdon,  28  Mich.  221.  Conti-a,  Gray  v.  Nelson,  77  la.  63.  Although 
there  was  an  indorsement  on  the  bond  of  a  forgiveness  of  a  part  of  it :  Tufnell  v. 
Constable,  8  Sim.  69.  Care  should  be  observed  in  clearly  distinguishing  between 
a  gift  of  a  ]3art  of  a  note,  and  the  acceptance  of  less  than  the  amount  due  in  pay- 
ment. These  transactions  are  not  interchangeable:  McKenzie  v.  Harrison,  120 
N.  Y.  260. 


Notes  and  Glioses  in  Action.  263 

to  the  defendant  with  intent  to  make  a  gift  thereof  to  him, 
and  the  latter  accept  it  as  a  gift  from  him,  the  debt  will 
be  extinguished.  Such  is  all  the  delivery  the  subject  is 
capable  of.  But  such  a  gift  cannot  be  made  by  merely 
balancing  the  books  of  the  debtor  "  by  gift,"  making  no 
delivery  of  anything  to  the  debtor ;  because  nothing  would 
be  delivered,  and  the  books  continuing  in  the  possession 
of  the  creditor,  the  gift  would  not  be  executed.  The  giv- 
ing of  a  receipt  and  the  delivery  operate  as  an  assignment 
of  the  account  and  the  right  of  action  thereon,  or  so  much 
thereof  as  the  receipt  covers,  to  the  debtor.^  So  a  stipula- 
tion and  acknowledgment  of  the  receipt  of  part  payment 
of  an  existing  debt,  recited  in  an  agreement  under  seal 
and  delivered  to  the  debtor,  is  proper  evidence  of  an  exe- 
cuted gift  of  the  debt  ipro  tanto?  So  an  indorsement 
made  in  consideration  of  kindness,  by  the  direction  and 
in  the  presence  of  the  mortgagee,  of  part  payments  upon 
a  mortgage  against  the  donee,  with  the  deliberate  and  ex- 
press intention  to  make  a  gift  or  donation  of  his  projDerty 
to  him,  will  be  sustained  as  an  extinguishment  or  forgive- 
ness of  the  mortgage  debt  to  that  extent ;  and  an  actual 
delivery  of  the  mortgage  and  note  secured  in  such  an  in- 
stance is  not  necessary,  although  it  would  be  if  the  whole 
debt  were  forgiven.^  The  owner  of  certain  land  executed 
a  contract  for  its  sale  and  conveyance  on  the  j^ayment 
of  $1,100,  to  all  which  the  purchaser  agreed  and  accepted 
the  contract.  But  it  was  never  intended  that  the  pur- 
chaser should  pay  anything,  and  subsequently  the  vendor 
indorsed  upon  the  contract  a  receipt  in  full  of  the  j^urchase- 

^  Gray  v.  Barton,  55  N.  Y.  68  ;  S.  C.  14  Am.  Rep.  181  ;  Ferry  v.  Stephens,  5  Flun, 
109 ;  Green  v.  Langdon,  28  Mich.  221  ;  Young  v.  Power,  41  Miss.  197 ;  Carpenter 
I'.  Soule,  13  Wk.  Dig.  55,  affirmed  88  N.  Y  251. 

^  Lamprey  r.  Lamprey,  29  Minn.  151;  Travis  v.  Travis,  8  Ontario,  516;  S.  C. 
12  Ont.  A  pp.  438. 

3  Green  v.  Langdon,  28  Mich.  221. 


264  Gifts. 

jDrice,  no  money  in  fact  being  paid.  Afterward  the  vendee 
brought  an  action  to  comj^el  a  specific  performance  of  the 
written  contract,  and  was  successful.  It  w^as  ruled  that 
whatever  may  have  been  the  intent,  the  agreement  to  con- 
vey -vvas  not  voluntary,  because  it  was  for  a  valuable  con- 
sideration ;  that  the  contract  did  not  operate  as  a  gift  of 
the  land,  and  conclusively  rebutted  an  intent  to  make  a 
present  gift ;  that  the  facts  showed  that  the  vendor,  to 
accomplish  his  purpose  of  giving  the  lands,  gave  the  debt 
which  rej^resented  his  interest  therein ;  and  that  the  re- 
ceipt operated  as  a  valid  and  complete  gift  of  the  debt, 
leaving  the  right  of  the  vendee  to  a  conveyance  in  force, 
the  same  as  if  the  debt  had  been  paid.^ 

298.  Note  Made  Payable  to  Third  Peeson. — A  com- 
mon form  of  gift  is  to  take  a  note  payable  to  a  third  per- 
son. In  such  an  instance  the  maker  of  the  note  accepts  as 
payee  a  stranger  at  the  request  of  the  person  who  is  enti- 
tled to  the  proceeds ;  and  the  latter  waives  his  right  to 
insist  upon  the  receij^t  of  such  proceeds.  This  amounts  to 
a  gift  from  the  person  who  is  entitled  to  such  proceeds,  to 
the  payee  ;  and  the  maker  of  the  note,  having  once  agreed 
to  it,  cannot  insist  upon  the  invalidity  of  the  transaction." 
Thus  where  a  father  conveyed  land  to  his  son,  and  took 
back  a  note  payable  to  his  remaining  sons  four  years  after 
his,  the  father's,  death,  but  the  interest  thereon  payable  to 
himself  during  his  life,  this  was  adjudged  a  valid  gift  of 
the  principal,  and  the  gift  was  not  void  because  of  no 
actual  delivery  to  the  donees,  which  is  usually  essential,^ 
for  the  circumstances  rendered  it  essential  that  the  ftither 
should  retain  the  note  during  his  lifetime.  The  father  be- 

1  Ferry  v.  Stephens,  66  N.  Y.  321  ;  S.  C.  below,  5  Hun,  109. 

2  Carver  v.  Carver,  53  Ind.  241  ;  Einker  v.  Einker,  20  Ind.  185  ;  Towle  v.  Towle, 
114  Mass.  167. 

3  Jones  V.  Deyer,  16  Ala.  221. 


Notes  and  C hoses  in  Action.  2G5 

came  a  trustee  for  the  donees  in  the  custody  of  the  instru- 
ment.^ But  if  there  can  be  a  delivery,  there  must  be  one  ; 
or  the  gift  will  be  invalid ;  and  the  mere  fact  that  they  are 
payable  to  the  donee  will  not  constitute  the  donor  a  trustee 
of  them  for  the  beneficiary.^  If  once  delivered,  the  repos- 
session of  the  note  by  the  donor  will  not  render  the  gift  in- 
valid. Thus  where  a  mother  sold  her  laud  and  caused  two 
of  the  notes,  given  for  the  purchase-money,  to  be  made 
payable  to  her  son,  then  three  years  old,  and  then  deliv- 
ered them  to  his  father  for  safe  keeping  for  the  son  ;  and 
the  father  afterward  died,  making  the  mother  his  execu- 
trix, and  she,  as  such  executrix,  then  obtained  the  custody 
of  his  papers,  including  the  notes  ;  and,  in  her  individual 
name,  purchased  a  tract  of  land  of  the  maker  of  the  notes, 
and  in  part  payment  therefor  cancelled  the  notes  and  de- 
livered them  to  him,  it  was  held  that  the  facts  showed  an 
executed  gift  of  the  notes,  and  that  her  conversion  thereof 
to  her  own  use  was  wrongful,  and  entitled  the  son,  by  his 
guardian,  to  recover  from  her  the  amount  of  the  notes. 
And  it  was  further  held  that  if  the  mother  committed  a 
breach  of  trust  in  making  the  gift,  she  was  estopped  to 
question  the  title  of  her  donee  by  setting  up  a  breach  of 
the  trust  in  bar  of  his  action  for  the  amount  of  the  note."^ 
So  if  a  husband  take  a  note  payable  to  his  wife  instead  of 
to  himself,  and  deliver  it  to  her,  he  cannot  afterward 
claim,  the  proceeds  by  the  reason  of  the  fact  that  it  comes 
into  his  possession.  Such  a  note  is  her  separate  property, 
and  she  is  not  a  trustee  for  him.*  So  a  policy  of  insurance 
taken  by  a  husband  on  his  own  life,  payable  to  his  wife, 
is  a  gift  to  her.^ 

^  Love  V.  Francis,  63  Mich.  181. 
2  Fanning  r.  Russell,  94  111.  386. 
»  Rinker  v.  Rinker,  20  Ind.  185. 

*  Carver  v.  Carver,  53  Ind.  241.     In  Massachusetts  all  gifts  made  to  a  wife  are 
void:  Towle  v.  Towle,  114  Mass.  167. 

*Fowlerly  v.  Butterly,  78  N.  Y.  68  ;  S.  C.  34  Am.  Rep.  507. 


266  Gifts. 

299.  Note  Payable  to  Husband  and  Wife  or  to 
Two  OR  More  Persons — Delivery — Survivorship. — 
If  a  husband  take  a  note  payable  to  himself  and  wife,  it  is 
a  gift  as  to  her ;  and  if  she  survive  him  before  its  collec- 
tion, she  is  entitled  to  the  full  amount  of  it ;  but  she  has 
no  interest  in  it  until  his  death.  During  his  life  he  may 
control  it.  A  delivery  to  her  is  not  essential.  In  such 
an  event  it  may  be  shown  that  the  husband  gave  her  a 
legacy  in  lieu  of  the  note.^  She  has  no  interest  therein 
until  his  death ;  and  if  she  die  before  him,  he  takes  the 
whole  by  right  of  survivorship.  He  may  even  defeat  her 
interest  by  his  will."  In  all*  such  instances  the  sufficiency 
of  the  assets  to  pay  the  debts  of  the  estate  must  be  con- 
sidered ;  and  if  there  are  not  enough,  her  claim  fails.^  A 
deposit  made  by  the  husband  in  the  name  of  his  wife  and 
his  own,  and  a  certificate  given  therefor  stands  upon  the 
same  basis  as  a  note  so  taken.'*  Such  a  transaction  amounts, 
prima  facie,  to  a  gift ;  but  the  presumption  thus  raised 
may  be  rebutted.^  So  a  transfer  of  money  by  a  husband 
into  the  joint  names  of  himself  and  wife,  with  intent  to 
make  it  a  gift,  will  so  constitute  it.*'  But  in  determining 
whether  the  wife  has  an  interest  in  the  gift  before  her 
death,  it  is  well  to  bear  in  mind  the  common-law  rule 
with  respect  to  a  wife's  personal  estate  and  the  right  of 

1  Sanford  v.  Sanford,  45  N.  Y.  723;  Sanford  v.  Sanford,  2  T.  &  C.  641 ;  affirmed 
58  N.  Y.  69 ;  S.  C.  17  Am.  Rep.  206,  but  not  upon  the  point  here  stated.  Doubted 
upon  tlie  question  of  delivery  :  Matter  of  Ward,  2  Redf.  251 ;  vS.  C.  51  How.  Pr. 
316. 

2  I'ile  I'.  Pile,  6  Lea,  508  ;  S.  C.  40  Am.  Rep.  50;  Scott  v.  Sinies,  10  Bosw.  314. 

3  Christ's  Hospital  v.  Budgin,  2  Vern.  6S3 ;  S.  C.  Eq.  Cas.  Abr.  70,  pi.  13  ; 
Duriimer  r.  Pitcher,  5  Sim.  35  ;  S.  C.  2  Myl.  &  Keen.  262  (Stock.) 

*  Roman  Catholic  Orphan  Asylum  v.  Strain,  2  Bradf.  34  ;  Scott  v.  Siines,  10 
Bosw.  314  (a  delivery  to  the  wife  held  not  necessary)  ;  Prindle  v.  Caruthers,  15 
N.  Y.  425. 

5  Pile  V.  Pile,  6  Lea,  508  ;  S.  C.  40  Am.  Rep.  50;  Johnson  r.  Lusk,  1  Tenn.  Ch. 
3;  Johnson  v.  Lusk,  6  Coldw.  113;  Draper  v.  Jackson,  16  Mass.  480. 

*  Low  V.  Carter,  1  Beav.  426  ;  Vance  v.  Vance,  1  Beav.  605. 


Notes  and  Choses  in  Action.  267 

her  husband  thereto  when  he  has  reduced  it  to  his  pos- 
session. This  rule  lias  left  its  mark  upon  the  cases  hold- 
ing survivorship  in  her  necessary  to  the  right  of  enjoy- 
ment.^ Whether  the  usual  married  women's  act  has 
changed  the  rule  has  not  been  decided,  it  is  believed ;  but 
it  is  the  opinion  of  the  writer  that  it  has,  and  the  trans- 
action would  be  the  same  as  if  the  wife  was  a  stranger.^ 

300.  Note  of  Donor  Payable  to  Doxee. — At  an 
early  date  it  was  declared  that  the  note  of  the  donor  exe- 
cuted to  the  donee  as  a  gift  was  not  a  valid  gift ;  it  was 
only  a  mere  promise  to  pay  a  certain  sum  of  money,  and 
being  without  consideration,  it  could  not  be  enforced. 
Such  a  note  cannot  be  regarded  as  an  appointment  or  dis- 
position in  the  nature  of  a  gift ;  and  is  not  capable  of  any 
greater  effect  in  equity  than  at  law.^  "But  we  think,"  said 
the  Supreme  Court  of  Massachusetts,  "  that  the  donor's 
own  promissory  note  payable  to  the  donee,  could  not  be 
the  subject  of  such  a  donation.  It  was  not  an  existing 
available  promissory  note  to  any  one ;  it  was  not  a  chose 
in  action.  We  have  already  seen  that  it  was  not  a  bind- 
ing contract  by  the  promisor  to  the  promisee ;  and  if  it 
were,  it  would  be  open  to  another  objection  as  a  donatio 
mortis  causa,  namely,  that  it  would  not  be  revocable  by 
the  donor.  It  was  simply  a  promise  to  pay  money,  and 
as  such  and  as  a  gift  of  a  sum  of  money,  it  wants  the  es- 

1  Johnson  T'.  Liisk,  6  Coldw.  113;  8.  C.  1  Tenn.  Ch.  3  below ;  Searing  i-.  Sear- 
ing, 9  Paige,  283;  Thompson  v.  Ellsworth,  1  Barb.  Ch.  C24. 

^  For  other  Engli-<li  cases,  see  Gosling  v.  Gosling,  3  Drew.  335.  A  sura  of 
money  was  invested  in  the  funds  in  the  joint  names  of  husband  and  wife,  and  the 
wife  by  a  power  of  attorney  from  the  husband,  sold  out  a  portion  and  with  his 
knowledge  kept  it  locked  up  in  her  own  special  custody.  It  was  held  that  the 
portion  which  remained  in  the  funds  in  their  joint  names  survived  to  her,  but 
the  other  portion,  which  was  sold  out  by  her  and  kept  in  her  custody,  formed, 
on  his  death,  a  part  of  his  personal  estate :  Re  Gadbury,  11  W.  E.  895  ;  S.  C.  32 
L.  J.  Ch.  780. 

3 Tate  V.  Hilbert,  2  Ves.  Jr.  Ill ;  S.  C.  4  Bro.  Ch.  286. 


268  Gifts. 

sential  requisite  of  an  actual  delivery."  ^  Love  and  affec- 
tion in  such  an  instance  will  not  support  the  note.^  Thus, 
where  a  father  gave  his  son  his  note  as  a  gift,  and  after- 
ward took  up  this  note  and  gave  him  another  for  a  larger 
amount,  the  last  note  was  held  void ;  and  the  claim 
that  there  was  a  good  consideration  for  the  second  note, 
because  of  the  first,  was  deemed  not  well  taken.^  A  note 
payable  at  his  death,  executed  as  a  gift,  cannot  be  en- 
forced against  his  estate/  So  where  a  son,  of  full  age, 
went  to  a  distance,  among  strangers,  fell  sick,  was  cared 
for  by  them ;  and  after  he  got  well,  his  father  gave  a  note 
for  what  those  nursing  and  caring  for  him  had  done  and 
for  the  money  they  had  spent  for  him,  it  was  held  that 
the  note  could  not  be  enforced.^  So  where  a  donor,  a 
short  time  before  her  death,  gave  her  note  to  the  plaintiff, 
who  was  a  daughter  of  the  intestate's  husband  by  a  for- 
mer marriage ;  the  plaintiff  worked  for  her  father  for 
some  time  after  her  majority,  but  no  contract  was  shown 
that  she  was  to  receive  j^ay  for  her  services ;  her  father 

^Parish  v.  Stone,  14  Pick.  198;  Bowers  v.  Hurd,  10  Mass.  427;  Gammon 
Theological  Seminary  v.  Robbins,  128  Ind.  85;  Holliday  v.  Atkinson,  5  B. 
&  C.  501. 

^  Smith  V.  Kittridge,  21  Vt.  238;  Raymond  v.  Sellick,  10  Conn.  480;  Brown  v. 
Moore,  3  Head.  670 ;  Walsh  r.  Kenedy,  9  Phila.  178 ;  S.  C.  31  Leg.  Int.  76 ;  2  W. 
N.  Cas.  436;  Langdon  v.  Allen,  1  W.  N.  Cas.  395;  Worth  v.  Case,  42  N.  Y.  362, 
affirming  2  Lans.  264;  Pearson  v.  Pearson,  7  Johns-  26;  Fink  v.  Cox,  18  Johns. 
145  ;  Craig .?;.  Craig,  3  Barb.  Ch.  76;  Whitaker  v.  Whitaker,  .52  N.  Y.  386;  S.  C. 
11  Am.  Rep.  711 ;  Copp  v.  Sawyer,  6  N.  H.  386  ;  Plielps  v.  Phelps,  28  Barb.  121 ; 
Flint  V.  Pattee,  33  N.  H.  520;  Voorhees  v.  Combs,  4  Vr.  (X.  J.)  494;  Hamor 
V.  Moore,  8  Ohio  St.  239;  Starr  v.  Starr,  9  Ohio  St.  74;  Egerton  xk  Egerton, 
17  N.  J.  Eq.  419;  Taylor  v.  Staples,  8  R.  I.  170;  Bradley  v.  Hunt,  5  Gill. 
&  J.  54 ;  Blanchard  v.  Williamson,  70  111.  647 ;  Brown  v.  Moore,  3  Head. 
671;  Smith  v.  Kittridge,  21  Vt.  238;  House  v.  Grant,  4  Lans.  296.  Such 
a  gift  is  not  complete  until  the  note  is  paid:  Williams  v.  Forbes,  114  111. 
167. 

3  Copp  V.  Sawyer,  6  N.  H.  386 ;  Hill  v.  Biickminister,  5  Pick.  391. 

*Hall  V.  Howard,  Rice  L.  (S.  C),  310;  Prior  v.  Reynolds,  8  W.  L.  Jr.  325; 
Flint  V.  Pattee,  33  K  H.  520 ;  Sanborn  v.  Sanborn,  65  N.  H.  172. 

5  Mill  I'.  Wyman,  3  Pick.  207. 


Notes  and  Choses  in  Action.  269 

gave  his  homestead  to  the  donor,  and  it  was  found  as  a 
fact  that  both  he  and  the  donor,  at  the  time  of  the  con- 
veyance, intended,  and  the  father  so  exjDressed  himself, 
tiiat  the  plaintiff  should  be  paid  for  her  services,  and  it 
was  to  carry  out  this  purpose  that  the  note  was  given ;  it 
was  held,  notwithstanding  this,  that  the  note  was  invalid, 
because  it  was  a  gift  based  on  a  promise  not  executed, 
there  was  no  consideration  for  it,  and  it  was  not  a  decla- 
ration of  a  trust.^  Nor  does  a  prior  gift  constitute  a  legal 
consideration  for  such  a  note.^  If,  however,  there  was  a 
consideration,  as  a  promise  to  pay  the  donee  for  services  to 
the  donor  as  nurse  in  his  illness,  the  note  is  valid ;  for 
then  it  becomes  a  contract,  and  is  no  lonfjer  a  gift.^  But 
the  payment  of  interest  on  such  a  note  will  not  make  the 
obliojation  bindins;.* 

301.  Lawson  v.  Lawsox — Gift  for  Mouexixg. — 
The  case  of  Laivson  v.  Laivson ''  is  one  often  referred  to ; 
and  many  efforts  have  been  made  to  distinguish  it  from 
other  cases.  At  this  day,  however,  it  is  practically  over- 
ruled. That  was  a  donatio  mortis  causa.  A  husband  save 
his  wife  one  hundred  guineas,  and  drew  a  bill  on  his  gold- 
smith to  pay  her  £100  for  mourning.  There  was  no 
question  that  the  first  was  a  valid  gift,  and  the  court  also 
held  that  the  latter  was  a  good  appointment.  "  It  might 
operate,"  observed  the  court,  "  like  a  direction  given  by 
the  testator  touching  his  funeral,  which  ought  to  be  ob- 
served, though  not  in  the  will ;  tbat  the  court  ought  to  go 

^Rogers  v.  Rogers,  55  Vt.  73;  In  re  Cowen,  3  Pitts.  471;  Smith  v.  Smith,  3 
Stew.  (N.  J.)  564. 

^  In  re  Cornwall,  6  Nat.  Bank  Ref.  305 ;  Copp  v.  Sawyer,  6  N.  H.  386. 

'  Worth  V.  Case,  42  N.  Y.  362 ;  affirming  2  Lans.  264 ;  Earl  v.  Peck,  64  N.  Y. 
596;  Cowee  v.  Cornell,  75  N.  Y.  91 ;  S.  C.  31  Am.  Rep.  428;  Giddings  v.  Gid- 
dings,  51  Vt.  227 ;  S.  C.  31  Am.  Rep.  682. 

*  Phelps  r.  Phelps,  28  Barb.  121. 

*  1  P.  Wms.  441 ;  S.  C.  2  Eq.  Cas.  Abr.  575,  pi.  4. 


270  Gifts. 

as  far  as  it  could  to  assist  the  meaning  of  the  party  in  this 
case."  ^ 

302.  Note  of  Donor  Payable  to  Donee  is  Valid. — 
There  are  a  few  cases  which  hokl  that  the  donor's  own 
note,  payable  to  the  donee,  is  valid,  and  a  binding  obliga- 
tion, both  as  a  gift  inter  vivos  and  as  a  mortis  causa.  One 
of  the  earliest  cases  was  decided  in  New  York  in  1823. 
There  the  maker,  in  his  last  illness,  signed  a  promissory 
note  for  $500,  and  delivered  it  to  the  payee  as  a  gift  mortis 
causa.  After  the  donor's  death  the  donee  brought  an  ac- 
tion upon  the  note  against  the  executors  of  the  maker. 
The  defense  attempted  to  show  a  want  of  consideration, 
but  wholly  failed.  Afterward  they  discovered  that  the 
donee  had  declared  that  the  testater,  the  donor,  had  by 
his  will  not  only  released  the  donee  from  a  considerable 
debt,  but  he  had  also  made  a  present  to  him  of  the  note 
in  question.  These  admissions  showed  the  note  to  be 
without  consideration ;  but  the  court  declined  to  grant  a 
new  trial,  and  upon  appeal  this  ruling  was  affirmed.  The 
court  seems  to  have  lost  sight  of  the  actual  point  in  the 
case,  and  discussed  the  question  whether  a  promissory 
note  jmyable  to  the  donor  could  be  made  the  subject  of  a 
gift  without  indorsement  by  the  donor,  reaching  the 
conclusion  that  it  could.^  Of  this  proposition  there  is  no 
doubt ;  and  it  is  for  this  that  the  case  is  cited  by  the 
Chancellor  in  a  subsequent  case,  and  not  upon  the  validity 
of  a  gift  of  the  donor's  own  note."'  But  this  very  fact 
seems  to  have  entirely  escaped  the  attention  of  the  Supe- 

iLord  Loughborough,  L.  C,  in  Tate  v.  Hilbert,  2  Ves.  Jr.  Ill  (1793),  said  : 
"It  was  observed  for  the  defendant  that  the  case  of  Lawson  v-  Lawson  was  over- 
turned by  Lord  Hardwicke.  I  have  caused  the  register's  book  to  be  searched, 
and  the  report  in  P.  Williams  is  certainly  inaccurate,  but  the  decision  is  per- 
fectly right." 

2  Wright  V.  Wright,  1  Cow.  598. 

s  Contant  v.  Schuyler,  1  Paige  Ch.  316,  • 


Notes  and  Glioses  in  Action.  271 

• 

rior  Court  of  New  York  city,  when  it  subsequently  de- 
cided the  donor's  own  note  to  be  a  valid  gift,  while  it 
admitted  that  a  different  rule  prevailed  in  Massachusetts 
and  England/  So  a  voluntary  bond,  payable  to  the  do- 
nee at  the  death  of  the  donor,  has  been  enforced 
against  his  estate,  although  the  donor  had  made  a 
will  disposing  of  the  bond,  and  the  gift  of  the 
bond  tended  to  disappoint  such  will.^  So  where 
a  son  gave  his  father  his  own  note  and  afterward 
intended  to  bequeath  it  to  him,  but  the  scrivener  advised 
him  that  he  might  effectually  declare  his  intention  on  the 
back  of  the  note,  which  he  accordingly  did ;  and  he  also 
frequently  spoke  of  the  fact  to  his  wife,  the  residuary 
legatee,  and  directed  her,  in  case  of  his  death,  to  give  the 
note  to  his  father,  and  she  so  behaved  as  to  satisfy  him 
that  she  had,  and  after  her  husband's  death  promised  the 
father  he  should  have  it — she,  upon  a  bill  brought  by 
the  father  for  that  purpose,  was  enjoined  from  collecting  it. 
This  was  ])ut  upon  the  ground  that  she  prevented  her 
husband,  the  son,  from  making  provision  in  the  will  for 
the  father  by  virtually  declaring  that  he  need  not  alter 
his  will  to  carry  out  his  intention,  for  she  would  see  that 
it  would  be  done.^  But  allowing  a  gift  of  the  donor's  note 
to  be  upheld,  especially  in  the  case  of  a  donatio  mortis 
causa,  is  attended  with  grave  dangers.  "  The  introduc- 
tion   into    our    law  of  the    doctrine    contended    for   by 

1  Parker  v.  Emerson,  9  Law  Reporter,  76 ;  S.  C.  4  X.  Y.  Leg.  Obs.  219. 

^Isenhart  v.  Brown,  2  Edw.  Ch.  34L  The  court  cited  Jones  v.  Powell,  1  Eq. 
Cas.  Abr.  84;  Cray  v.  Rooke,  Talb.  Cas.  156;  Lechmere  v.  Earl  of  Carlisle,  3  I*. 
Wms.  222 ;  and  Lady  Cox's  Case,  lb.  339. 

The  case  of  Wright  v.  Wright,  siiipra,  has  been  denied  in  a  number  of  cases. 
See  Hall  v.  Howard,  Rice,  L.  (S.  C.)  p.  314  ("not  founded  on  principle,  and  has 
no  authority  to  sustain  it ")  ;  denied  in  Holley  v.  Adams,  ]  6  Vt.  206  ;  S.  C.  42  Am. 
Dec.  508  ;  Parish  v.  Stone,  14  Pick.  198 ;  S.  C.  25  Am.  Dec.  378  ;  Raymond  v.  Sel- 
lick,  10  Conn.  480.     Overruled  in  Harris  v.  Clark,  3  N.  Y.  93. 

3  Richardson  v.  Adams,  10  Yerg.  273;  Wickett  v.  Raby,  3  Bro.  P.  Cas.  16, 


272  Gifts. 

the  plaintiff,"  said  the  Supreme  Court  of  Connecticut, 
"might  be  attended  with  serious  consequences.  If  notes 
executed  by  a  man  in  his  last  sickness,  and  with- 
out consideration,  were  binding  upon  liLs  estate,  a  new 
method  would  be  devised  of  disposing  of  estates  without 
the  trouble  and  formalities  of  wills.  These  notes  might 
be  executed  in  private  and  without  the  aid  or  presence  of 
witnesses.  The  individuals  surrounding  the  bed  of  a  feeble 
and  dying  man  might,  by  their  imj^ortunities,  prevent 
[secure]  the  execution  of  such  notes,  and  sweejD  from  his 
heirs,  not  a  specific  chattel,  bond,  or  bill,  but  his  whole 
estate,  real  and  personal.  His  lands,  as  well  as  his  per- 
sonal estate,  might  be  sold  for  the  payment  of  such  notes, 
and  thus  the  wholesome  provisions  of  the  law  relating  to 
devises  might  be  effectually  evaded."  ^ 

303.  Doxor's  Owx  Mortgage  to  Donee. — In  some 
jurisdictions  the  donor's  own  mortgage  given  by  him  to 
the  donee,  to  secure  the  gift  of  a  sum  of  money  promised, 
will  be  enforced.  Not  in  all  jurisdictions,  as  we  shall  see, 
is  such  the  case.  The  distinction  to  be  drawn  is  between 
those  cases  which  hold  that  the  fee  of  the  land  mortgaged 
passes,  and  those  which  hold  that  it  does  not.  In  the 
former  case  the  mortgagor  retains  an  equity  of  redemption, 
equivalent,  for  many  j^urposes,  to  a  general  ownershi]^  of 

^  Raymond  v.  Sellick,  10  Conn.  480.  "Where  a  note  was  given  bv  a  mother  to 
a  trustee  for  her  child  enciente,  the  court  said  it  was  not  suiBciently  nuduvi  pactum 
to  allow  a  demurrer  to  a  bill  by  the  child  and  the  trustee  to  have  it  carried  into 
execution:  Seton  r.  Seton,  2  Bro.  Ch.  610.  So,  where  a  testator  gave  in  her  life- 
time to  the  plaintiff  a  note  to  pay  him  or  order  "on  demand  £100  for  value 
received  and  his  kindness  to  me,"  with  a  verbal  engagement  on  the  part  of  the 
plaintiff  that  the  note  should  not  be  demanded  until  after  her  deaih,  it  was  held 
that  parol  evidence  could  not  be  received  to  i-how  tliat  it  was  not  given  for  a  val- 
uable consideration,  and  that  it  did  not  operate  by  way  of  testamenlary  disposition, 
nor  was  it  void  on  the  ground  that  it  was  a  fraud  on  the  legacy  duty,  that  duty 
never  being  attached  upon  it  and  there  being  nothing  to  show  that  the  amount 
passed  by  way  of  donatio  mortis  causa:  Woodbridge  v.  Spooner,  1  Chitty,  661. 


Notes  and  Choses  in  Action.  273 

the  land,  but  yet,  in  point  of  form,  an  equity.  The  mort- 
gagee must  go  into  a  court  of  equity  to  enforce  his  mort- 
gage, as  the  mortgagor  must  in  order  to  redeem ;  and  the 
latter  must  do  this,  not  because  the  mortgage  is  an  execu- 
tory contract,  and  requires  the  aid  of  a  court  of  chancery, 
but  to  compel  a  specific  performance.  On  non-perform- 
ance the  conditions  of  the  mortgage  is  forfeited  at  law, 
but  the  equity  of  redemption  remains  in  the  mort- 
gagor or  his  representatives.  That  equity  can  onl}'  be 
extinguished  by  a  decree,  or  an  equivalent  proceeding 
under  a  positive  statute.  Therefore,  a  donee  of  the  mort- 
gage of  the  donor  brings  the  action,  not  for  the  purpose  of 
being  aided  in  establishing  his  mortgage  under  the  notion 
of  remedying  a  defective  conveyance,  or  obtaining  a 
specific  performance,  but  to  foreclose  and  extinguish  the 
donor's  equity  of  redemption,  which  a  court  of  law  is  not 
competent  to  deal  with.  He  does  not  come  to  establish  a 
voluntary  equitable  agreement,  but  to  enforce  a  legal  title 
under  an  executed  conveyance,  and  to  cut  off  an  equity 
attached  to  that  legal  title  and  vested  in  the  donor.  Such 
a  voluntary  mortgage  is  valid,  and  will  be  enforced.^ 

304.  Subscription  to  a  Charity,  Church,  College, 
ETC. — A  note  given  as  a  subscription  to  a  charity,  an  edu- 
cational institution,  or  a  religious  denomination,  in  aid  of 
the  object  of  its  creation,  is  valid  and  will  be  enforced  by 
the  courts.  Thus  the  charter  of  an  educational  society 
empowered  it  to  purchase  or  receive  by  donation,  devise, 
or  bequest,  land,  moneys,  rents,  goods,  or  chattels,  and  hold 
them  for  the  use  and  benefit  of  the  society,  according  to 
the  intention  of  the  donor.  A  note  was  executed  to  this 
society,  without  specifying  the  object  of  the  donation,  and 

^  Bucklin  v.  Bucklin,  1  Abb.  App.  Dec.  242  ;  Van  Ambnrgh  v.  Kramer,  16  Hun, 
205.    See  Hunt  v.  Johnson,  44  N.  Y.  27  ;  vS.  C.  4  Araer.  Rep.  631. 
18 


274  Gifts. 

this  obligation  was  enforced  by  the  court.  The  court  said 
that  the  donation  was  authorized  by  law,  and  the  law  im- 
posed upon  the  society  the  obligation  to  use  and  appro- 
priate it  in  carrying  out  charitable  and  benevolent  objects 
of  the  society  and  the  donor.  "  In  the  execution  of  this 
note  then,"  said  the  court,  "  there  was  on  one  side  the  ob- 
ligation to  ap23ropriate  this  fund  according  to  the  provision 
of  the  charter,  and  the  promise  to  pay  on  the  other. 
Liabilities  were  doubtless  incurred  upon  the  faith  of  it, 
and  the  note  viewed  in  connection  with  the  law,  which 
authorized  it,  shows,  in  our  oj)inion,  a  sufficient  considera- 
tion for  its  execution,  and  to  estop  the  defendant  to  deny 
that  there  was  no  legal  or  valuable  consideration."  ^  But 
it  cannot  be  said  that  all  the  cases  are  put  upon  this 
ground.  "  The  real  consideration  for  his  promise,"  said 
the  Supreme  Court  of  Indiana,  "  is  the  promise  which 
others  have  already  made,  or  which  he  expects  them  to 
make,  to  contribute  to  the  same  object."  ^  It  will  be  ob- 
served that  it  is  totally  immaterial,  in  this  view  of  the 
question,  that  the  donee  entered  into  engagements  that 
were  binding  upon  it,  or  erected  buildings,  relying  upon 
such  promises,  in  order  to  be  able  to  enforce ,  such  an 
obligation.^     It  makes  no  difference  that  the  object  sub- 

^  Collier  v.  Baptist  Education  Society,  8  B.  Mon.  68  ;  Kentucky  Female  Orphan 
School  V.  Fleming,  10  Bush.  234  ;  Watkins  v.  Eames,  9  Cush.  537  ;  Tliompson  v. 
Page,  1  Met.  565  ;  Garrigue  v.  Home,  etc.,  Society,  3  Ind.  App.  91. 

^Peirce  v.  Ruley,  5  Ind.  69  ;  quoted  in  Petty  v.  Trustees  of  Church  of  Christ, 
etc.,  95  Ind.  278.     See,  also,  Kinsley  v.  International,  etc.,  Co.,  41  111.  App.  259. 

^  Watkins  v.  Eames,  9  Cush.  537  ;  Amherst  Academy  v.  Cowls.  6  Pick.  427  ; 
(criticising  Bowers  v.  Hurd,  10  Mass.  427) ;  Boutell  v.  Cowdin,  9  Mass.  254  ; 
Limerick  Academy  v.  Davis,  11  Mass.  113  ;  Farmington  Academy  r.  Allen,  14 
Mass.  172;  Bridgewater  Academy  z'.  Gilbert.  2  Pick.  579;  First  Eeligious  Society 
V.  Stone,  7  Johns.  112;  Ives  v.  Sterling,  6  Met.  310;  Trustees  of  Hanson  v.  Stet- 
son, 5  Pick.  506  ;  Ladies'  Collegiate  Institute  v.  French,  16  Gray,  196  ;  Twenty- 
Third  Street  Church  v.  Cornell,  117  N.  Y.  601 ;  S  C.  24  J.  &  S.  260  ;  Gorman  v. 
Carroll,  7  Allen,  199  ;  Jewett  v.  Salisbury,  16  Ind.  370;  First  Baptist  Society  v. 
Eobinson,  21  X.  Y.  234 ;  Johnston  v.  Wabash  College,  2  Ind.  555 ;  Northwestern 


Notes  and  Choses  in  Action.  275 

scribed  to  is  a  private  enterprise/  In  discussing  tliis 
phase  of  the  question,  Judge  Manning  said  of  a  college 
subscription  :  "  It  is  not  denied  that  here  is  a  promise, 
but  it  is  said  that  the  plaintiff  in  error  is  not  bound  by  it, 
because  there  was  no  consideration  for  it.  What  is  a 
consideration  ?  The  price  paid,  or  agreed  to  be  paid,  for 
the  promise — that  is,  the  thing  done,  or  agreed  to  be 
done,  is  the  consideration.  Hence,  mutual  promises  are 
a  good  consideration  for  each  other  ;  as,  when  A  promises 
B  to  do  a  certain  thing,  in  consideration  that  B  promises 
A  to  do  a  certain  thing.  It  is  not  necessary  that  either 
party  should  be  pecuniarily  benefited  by  the  act  done,  or 
to  be  done,  by  the  other.  The  promise  may  inure  to  the 
benefit  of  a  third  person,  and  not  of  the  party  to  whom  it 
is  made.  It  is  immaterial,  therefore,  that  the  college 
which  is  to  receive  the  benefit  of  the  promise  is  not  a 
party  to  it.  The  benefit  to  the  college  is  the  inducement 
to,  and  not  the  consideration  of,  the  promise,  which  is  the 
subscription  of  the  paper  by  others.  Each  subscriber 
promises  to  pay  to  the  person  named  in  the  subscription, 
for  the  purpose  therein  mentioned,  the  sum  set  oj^posite 
his  name,  in  consideration  of  a  like  promise  by  every 
other  subscriber.  This  is  clearly  implied  in  the  subscrip- 
tion itself.  It  is  the  understanding  of  every  person  who 
puts  his  name  to  a  subscrij^tion  paper ;  and  when  the  ob- 

Conference  v.  Myers,  36  Tnd.  375 ;  Higert  v.  Asbury  University,  53  Ind.  320  ; 
George  v.  Harris,  4  N.  H.  533;  Congregational  Society  v.  Perry,  6  N.  H.  164  ; 
M'Auley  v.  Billenger,  20  Johns.  89  ;  Underwood  v.  Waldron,  12  Mich.  73;  Troy 
Conference  Academy  v.  Nelson,  24  Vt.  189;  Patchin  v.  .Swift,  21  Vt.  292;  State 
Treasurer  v.  Cross,  9  Vt.  289;  Iliggins  v.  Ruldell,  12  Wis.  587;  Lnthrop  i: 
Knapp,  27  Wis.  214;  Christian  College  v.  flcndlev,  40  Cal.  347  ;  Pillans  v.  Mi- 
erop,  3  Burr.  1673  ;  Jones  v.  Ashburnham,  4  East.  455  ;  Van  Rensselaer  r.  Aikin, 
44  Barb.  547  ;  Roberts  v.  Cobb,  103  N.  Y.  600  ;  Commissioners  of  the  Cannl  Fimd 
V.  Perry,  5  Ohio  St.  55;  Comstock  v.  Howd,  15  Mich,  237 ;  Wesleyan  Seminary  v. 
Fisher,  4  Mich.  515  ;  Baker  v.  Johnston,  21  Mich.  319;  Trustees  of  the  Parson- 
age Fund  V.  Ripley,  6  Greenl.  442. 
^  Lathrop  v.  Knapp,  27  Wis.  214. 


276  Gifts. 

ject  is  conducive  to  the  public  weal,  as  in  the  case  before 
us,  it  seems  to  me  it  would  be  a  strange  perversion  of  legal 
princij^le  to  refuse  to  enforce  the  subscription  on  a  plea 
of  want  of  consideration."  ^  In  a  few  cases  the  question 
of  consideration  is  really  not  involved  ;  but  the  courts 
seem  unable  to  get  rid  of  the  notion  of  the  sufficiency  of 
a  consideration,  although  that  question  is  really  unneces- 
sary to  a  decision  of  the  case.  The  case  first  cited  from 
Kentucky  ^  is  one  of  this  kind,  where  the  court  insisted 
upon  discussing  the  sufficiency  of  the  consideration,  al- 
though the  validity  of  the  gift  could  have  been  easily 
upheld  (and  this  was  hinted)  upon  another  ground. 
Thus  where  an  act  of  the  Legislature  expressly  au- 
thorizes a  donation  to  a  certain  person  or  corporation, 
and  authorizes  the  latter  to  accept  it,  it  may  be  upheld  on 
this  ground  alone,  even  though  it  be  a  written  j^romise  to 
contribute  property  or  money.  The  Legislature  is  clearly 
competent  to  do  this.^ 

305.  Acceptance  of  Subscription. — A  third  class  of 
cases  recognize  the  doctrine  that  the  subscription  is  in  tlie 
nature  of  a  proposition,  which  becomes  mutual  and  bind- 
ing when  accepted  by  the  promisee,  and  he,  in  good  faith, 
commences  the  work  contemplated  by  the  subscription. 
This  line  of  authorities  is  expressly  put  upon  the  ground 
that  there  was  an  acceptance  and  expenditure  of  money 
in  reliance  thereon.  "  Although  the  promise  would  not 
have  been  mutual  if  the  corporation  had  sued  before  they 
had  made  any  advances  toward  the  erection  of  the  build- 

^'''nderwood  r.  Waldron,  12  Mich.  73,  92 ;  Hudson  v.  Green  Hill  Seminary, 
113  111.  618. 

2  Collier  r.  Baptist  Education  Sncietv,  8  B.  Mon.  68. 

^Commissioners  of  the  Canal  Fund  v.  Perrv,  5  Ohio,  55. 

A  few  decisions  hold  notes  payable  to  colleges,  and  the  like,  as  mere  promises 
to  make  a  gift,  and  void  :  Gammon  Theological  Seminary  v.  Bobbins,  128  Ind. 
85 ;  Simpson  Centenary  College  v.  Tuttle,  71  la.  596. 


Notes  and  Choses  in  Action.  277 

ings,"  said  the  Supreme  Court  of  Vermont ;  "  yet,  it  can- 
not be  said,  after  the  acceptance  of  the  subscription,  the 
appointment  of  a  committee  to  superintend  the  structure, 
and  a  commencement  in  fact  of  the  work,  that  the 
promise  was  not  mutual ;  for  with  the  commencement  of 
such  labors,  in  good  faith,  with  a  view  to  the  ultimate 
completion  of  the  superstructure,  was  a  consummation  of 
the  consideration,  and  bound  the  defendant  Buell  to  a 
performance  on  his  part."  ^  If  this  view  is  taken  of  the 
transaction,  then  there  must  be  an  actual  commencement 
of  the  proposed  work  subscribed  to,  or  an  expenditure  of 
money  by  the  promisee,  who  must  rely  thereon.  In  such 
an  instance  the  matter  lies,  it  seems  to  us,  more  in  estoppel 
than  in  contract  ;  but  it  matters  not  which  view  of  the 
transaction  is  taken,  for  the  result  is  the  same.  Thus  sub- 
scribers to  a  paper  therein  agreed  to  lend  the  sums  of 
money  set  against  their  names  respectively,  for  the  pur- 
pose of  establishing  a  newspaper,  and  appointed  a  certain 
person  to  receive  and  manage  the  application  of  the 
money.  The  person  so  appointed  advanced  his  own 
money,  and  then  brought  an  action  to  recover  the  amount 
subscribed  from  one  of  the  subscribers.  The  action  was 
sustained,  the  court  considering  "  that  by  means  of  the 
contract,  Larkin  [the  appointee]  was  led  to  confide  in  the 
engagement  of  the  defendant  so  far  as  to  advance  money 
for  him,  and  should  recover  it  back."  ^  So  where  the  de- 
fendant with  others  subscribed  to  the  repair  of  a  church, 
upon  the  express  provision  "  that  no  person  should  be 
obliged  to  pay  the  sum  which  he  subscribed,  unless  a  suf- 
ficient sum  was  raised  to  repair  the  church  ;"  and  the 
committee  in  charge  entered  into  a  contract  with  a  person 
to  make  the  repairs  for  a  specific  sum,  who  engaged  to 

'  University  of  Vermont  v.  Buell,  2  Vt.  48. 
"^  Homes  v.  Dana,  12  Mass.  190. 


278  Gifts. 

take  the  subscriptions,  being  about  one-half  of  that  sura, 
in  payment,  and  to  raise  the  residue  by  the  sale  of  the 
pews,  which  he  was  authorized  to  make,  the  defendant 
was  not  allowed  to  escape  liability,  for  there  was  a  com- 
pliance with  the  conditions.  "  The  consideration  for  his 
promise  was  the  repairing  of  the  church,"  said  the  court. 
"  By  signing  the  subscription  he  sanctioned  the  acts  of  the 
meeting  in  resolving  to  make  the  repairs,  and  in  the  ap- 
pointment of  the  committee  for  that  purpose."  ^  So  where 
the  defendant  subscribed  to  a  college  on  the  ground  that 
it  should  be  located  at  a  certain  place,  it  was  held  that 
after  the  decision  to  locate  it  at  the  place  designated,  and 
the  entering  by  the  corporation  into  binding  contracts  for 
the  erection  of  buildings,  the  subscrijjtions  were  accepted 
and  became  binding  upon  those  subscribing.^  Such  a 
contract  is  not  joint,  but  several.^  In  the  case  of  a  sub- 
scription to  a  proposed  railroad,  the  Supreme  Court  of 
Michigan  has  construed  it  to  be  conditional  upon  the  com- 
pletion of  the  road.*  So  one  of  several  stockholders  can- 
not back  out  of  an  agreement  which  all  have  entered  into 
to  constitute  a  number  of  shares  each,  to  be  sold  for  the 

1  M'Auley  v.  Billenger,  20  Joliiis.  89. 

*  Wayne  and  Ontario  Collegiate  Institute  v.  Snaith,  36  Barb  576;  Barnes  i-. 
Ferine,  9  Barb.  202 ;  S.  C.  15  Barb.  249  ;  12  N.  Y.  18 ;  Wayne  and  Ontario  Col- 
legiate Institute  v.  Devinney,  43  Barb,  220;  Van  Rensselaer  i;.  Aikin,  44  Barb. 
547  ;  Hutchins  v.  Smitli,  46  Barb.  23.5  ;  Presbyterian  Church  of  Albany  v.  Cooper, 
45  Hun,  453 ;  Richmondville  Union  Seminary,  etc.,  v.  Brownell,  37  Barb.  535  ; 
Roberts  v.  Cobb,  103  N.  Y.  GOO;  Latlirop  v.  Kna[)p,  27  Wis.  214  (said  to  be  es- 
topped) ;  McDonald  v.  Gray,  11  la.  508  ;  Burlington  University  v.  Barrett,  22  la. 
GO  ;  R  >bertson  v.  March,  3  vScam.  (111.)  198  ;  Pryor  v.  Cain,  25  111.  263  ;  Thompson 
V.  .Mercer  Co  ,  40  111.  379 ;  McClure  v.  Wilson,  43  111.  356  (substitute  for  a  draft) ; 
Miller  I'.  Ballard,  46  111.377;  Kentucky  Baptist  Education  Society  r.  Carter,  72 
HI.  247;  Whitsilt  »;.  Pre-emption  Presbyterian  Church,  110  111.  125  (specific  per- 
formance); Ryer.ss  V  Presbyterian  Congregation,  33  Pa.  St.  114;  Reimensnyder 
r.  Gans,  110  Pa.  St.  17  ;  Stevens  ?•.  Corhitt,  33  Mich.  458. 

3  Robertson  v.  March,  3  Scam.  (111.)  198. 

*  Stevens?'.  Corbitt,  33  Mich.  458  ;  Michisran,  etc..  R.  R.  Co.  v.  Bacon,  33  Mich. 
466 ;  Tower  v.  Detroit,  etc.,  R.  R.  Co.,  34  Mich.  329. 


Notes  and   Choses  in  Action.  279 

benefit  of  the  corporation,  after  the  rest,  in  reliance  upon 
the  agreement,  have  contributed  their  proj)ortion.'  Many 
of  the  cases  cited  in  this  section  are  made  to  turn  upon 
the  fact  that  debts  had  been  incurred,  or  tilings  done,  by 
the  donee,  who  was  at  the  time  relying  upon  the  promise 
of  the  donor  or  donors  ;  but  in  several  of  the  States  from 
which  cases  are  herein  cited,  the  rule  is  in  force  which 
holds  the  donor  liable  upon  the  ground  discussed  in  the  j^re- 
ceding  section.  It  may  be  remarked,  however,  that  the  fact 
of  the  subscription  alone  does  not  raise  a  binding  promise 
on  the  j^art  of  the  donee  to  do  anything,  nor  does  it  con- 
stitute a  request  to  do  anything,  nor  can  such  a  request  be 
implied.  The  understanding  among  the  subscribers  does 
not  change  the  rule.  But  a  subscription  invalid  at  the 
time  for  want  of  a  consideration  may  be  made  valid  and 
binding  by  a  consideration  arising  subsequently  between 
the  subscribers  and  the  donee.^ 

306.  Acceptance  —  Revocation  —  Death  of  Sub- 
scriber.— There  must  be  an  acceptance  on  the  part  of 
the  person  or  company  to  be  benefited  by  the  proposed 
donation ;  but  this  acceptance  will  be  inferred  from  the 
mere  act  of  briuging  an  action  thereon,  unless  the  sub- 
scription was  conditional ;  ^  but  in  those  States  where  the 
doctrine  of  (quasi)  estoppel  is  invoked  to  uphold  these 
gifts  or  donations  "  an  acceptance  can  only  be  shown  by 
some  act  on  the  part  of  the  promisee  whereby  some  legal 
liability  is  incurred  or  money  is  expended  on  the  faitli  of 
the  promise."*    "If  the  promisor  dies,"  says  the  Supreme 

1  Conrad  v.  La  Bue.  52  Mich.  83. 

'Presbyterian  Cluirch  of  Albany  v.  Cooper,  112  N.  Y.  517.  See  Barnes  ?;. 
Ferine,  12  N.  Y.  18;  Roberts  v.  Cobb,  103  N.  Y.  600;  S.  C.  21  N.  Y.  St.  Rep. 
503.  Subscription  to  a  Grand  Army  encampment  lieid  valid:  Kinsley  v.  Inter- 
national, etc ,  Co.,  41  111.  A  pp.  259. 

'Northern  Central  Michigan  R.  R.  Cn.  v.  Eslow,  40  ^Mich.  222. 

*  Grand  Lodge  of  Good  Templars  v.  Farnhani,  70  Cal.  158. 


280  Gifts. 

Court  of  California,  "  before  his  offer  is  accepted  it  is 
thereby  revoked,  and  cannot  afterward,  by  any  act  show- 
ing acceptance,  be  made  good  as  against  his  estate.^  The 
rule  is  otherwise,"  continues  the  court,  "  where  subscribers 
agree  together  to  make  up  a  specified  sum,  and  where  the 
withdrawal  of  one  increases  the  amount  to  be  paid  by  the 
others.  In  such  a  case,  as  between  the  subscribers,  there 
is  a  mutual  liability,  and  the  co-subscribers  may  maintain 
an  action  against  one  who  refuses  to  pay."  ^  The  death 
of  the  subscriber  is  a  cancellation  of  his  subscription,  and 
it  cannot  be  enforced  against  his  estate.^ 

307.  Who  May  Sue  Upox  Subscription. — It  is  im- 
material that  no  promisee  or  donee  is  named,  if  some  one 
is  mutually  designated  to  collect  the  money  subscribed. 
Such  a  designation  places  the  subscription  on  the  same 
ground  as  if  his  name  had  been  inserted  in  it  as  the 
payee.  Thus  where  a  subscription  was  taken  to  give  a 
free  dinner  to  "  returned  soldiers,"  and  a  certain  person 
was  duly  selected  by  those  starting  the  subscription  to 
secure  subscribers,  collect  the  money,  and  make  all  neces- 
sary disbursements,  it  was  held  that  such  person  was  the 
proper  plaintiff  to  sue  and  collect  any  of  the  unpaid  sub- 
scriptions.^ So  the  trustees  of  an  unincorporated  society 
organized  for  a  lawful  purpose  may  receive  promises  on 
its  behalf;  and  a  mutual  subscription  on  its  behalf  may 
be  supported,  even  though  no  payee  be  named,  if  the  ob- 

1  Pratt  V.  Trustees,  etc.,  93  111.  475  ;  Beach  v.  First  M.  E.  Church,  96  111.  177  ; 
Phipps  V.  Jones,  20  Pa.  St.  260 ;  Helfenstein's  Estate,  77  Pa.  St.  328 ;  Cottage 
Street  Church  v.  Kendall,  121  Mass.  528. 

"^  Citing  George  v.  Harris,  4  N.  H.  533 ;  Currv  v.  Ptogers,  21  N.  H.  247. 

'Grand  Lodge  of  Good  Templars  v.  Farnham,  70  Cal.  158  ;  Reimensnyder  v. 
Gans,  110  Pa.  St.  17. 

*Comstock  V.  Howd,  15  Mich.  237.  This  is  especially  true  if  he  has  went  for- 
ward and  advanced  money  to  complete  the  proposed  work :  Van  Rensselaer  v. 
Aiken,  44  Barb.  547. 


Notes  and   Choses  in  Action.  281 

ject  is  made  definite  and  certain/  So  an  agreement  to  pay 
A,  "treasurer"  of  an  unincorporated  corporation,  which 
is  to  be  incorporated,  may  be  enforced  in  the  name  of  A 
alone,  the  word  "  treasurer  "  being  rejected  as  surplusage.^ 
So  it  has  been  held  that  a  subscription  to  be  paid  to  a  per- 
son to  be  elected  by  a  proposed  corporation  may  be  en- 
forced in  the  name  of  the  corporation  after  it  is  organ- 
ized.^ 

308.  Sunday  Subscriptions. — A  subscription  upon 
Sunday  to  build  a  church  is  valid,  and  so  is  one  to  a 
charity.^  But  the  contrary  has  been  held,  and  a  note  exe- 
cuted on  Sunday  held  void,  upon  the  ground  that  its  execu- 
tion was  an  act  of  common  labor  forbidden  by  the  statute.^ 

309.  Conditional  Promise — Consideration. — It  is 
elementary  that  a  promise  to  make  a  gift  upon  a  certain 
contingency,  that  contingency  must  happen,  or  no  claim 
can  be  made  that  an  obligation  rests  upon  the  donor  to 
make  the  gift.  And  if  the  condition  is  that  the  donee  will 
do  or  refrain  from  doing  something,  and  he  comjDlies  with 
the  conditions,  the  donor  is  bound  to  stand  by  his  propo- 
sition. But  here  we  pass  beyond  the  gift  into  a  contract. 
Thus,  where  a  proposition  was  made  to  a  county  that,  if  it 
would  raise  $2,000  and  pay  it  to  a  corporation  for  the 
purpose  of  erecting  a  monument,  the  j^erson  proj^osing 
would  pay  such  corporation  $1,000,  and  the  county  raised 
the  money  and  paid  it  over  to  the  corporation,  it  was 

1  Allen  7'.  Diiffie,  43  Mich.  1. 

=  McDonald  r.  Gray,  11  la.  508. 

^  Wayne  and  Ontario  Collegiate  Institnte  v.  Greenwood,  40  Earb.  72 ;  Farming- 
ton  Acaderav  v.  Allen,  14  Mass.  172  ;  Limerick  Academy  v.  Davis,  11  Mass.  113. 

*  Allen  V.  Duffie,  43  Mich.  1 ;  S.  C.  38  Am.  Rep.  159 ;  Dale  v.  Knapp,  98  Pa.  St. 
389  ;  S.  C.  42  Amer.  Rep.  624  ;  38  Amer.  165  ;  Bryan  v.  Watson,  127  Ind.  42. 

»Catlett  V.  M.  E.  Chnrch,  62  Ind.  365  ;  S.  C.  30  Amer.  Rep.  197.  This  case 
is  overruled  in  Bryan  v.  Watson,  supra. 


282  Gifts, 

adjudged  that  the  person  so  proposing  was  legally  bound 
to  pay  over  the  $1,000.  The  proposition  had  been  ac- 
cepted and  become  a  contract  that  could  not  be  revoked.^ 
So,  where  the  defendant  subscribed  $5,000  toward  a  fund 
of  $45,000  to  be  raised  to  pay  the  principal  of  a  mortgage 
on  a  church,  upon  the  exjiress  condition  that  the  full 
sum  of  $45,000  should  be  subscribed  or  paid  in  for  that 
purpose,  and  that,  if,  within  one  year  from  the  date  of  tlie 
subscription,  the  full  sum  should  not  be  subscribed  or 
paid  for  such  purpiose,  then  the  agreement  was  to  be  null 
and  of  no  effect;  and  among  the  subscriptions  was  one 
for  $5,000  by  the  "Ladies'  Association"  of  the  church, 
signed  by  the  lady  president,  which  consisted  of  such 
ladies  of  the  church  as  contributed  to  its  benevolent 
work,  who,  at  a  meeting  at  which  some  twenty-five  or 
thirty  were  present,  passed  a  resolution  pledging  them- 
selves to  raise  that  sum ;  one  for  $500  by  "  Sunday- 
school,"  made  by  the  superintendent,  and  approved  and 
ratified  at  a  meeting  of  the  ofiicers  and  teachers ;  and  the 
young  men  of  the  church,  at  a  regularly  organized  meet- 
ing, also  passed  a  resolution  j)ledging  themselves  to  pay 
$1,500,  and  requested  tlie  chairman  of  the  meeting  to  sign 
the  subscription  j^apers,  which  he  did — it  was  held  that  the 
defendant  was  not  liable  for  the  reason  that  the  subscrip- 
tions above  set  forth  were  all  invalid,  while  valid  sub- 
scriptions for  an  actual  payment  of  the  full  amount  were 
a  condition  precedent  to  the  testator's  liability.  Nor  did 
the  court  consider  the  fact  that  the  donor  had  paid  a  part 
of  his  subscription,  with  full  knowledge  of  these  invalid 
subscriptions,  amount  to  a  waiver  of  the  condition  prece- 
dent, or  estop  him.^ 

^  La  Fayette  County  v.  Magoon,  73  Wis.  627. 

''Presbyterian  Churcli  of  Albany  v.  Cooper.  4o  Hun,  453;  S.  C  10  N.  Y.  St. 
Eep.  142.     This  case  was  afBrmed,  but  upon  different  grounds  from  that  stated 


Notes  and  Choses  in  Action.  283 

310.  Liability  of  a  Single  Donor  or  Subscriber — 
Mutual  Subscription  not  Sufficient  to  Bind  Donors. 
— If  there  be  but  one  subscriber,  then  it  is  evident  that 
the  rule  that  the  promises  of  other  subscribers  is  a  suffi- 
cient consideration  to  uphold  his  promise  cannot  apply ; 
and  if  the  donee  has  not  promised  something  in  considera- 
tion of  the  promise  of  the  donor,  or  has  not  assumed  some 
liability,  or  changed  his  position,  the  validity  of  the 
donor's  promise  must  rest  upon  the  sole  ground  that  there 
is  an  implied  promise  on  the  part  of  the  donee  to  apply 
the  gift  to  the  object  to  which  it  was  given  and  in  the 
manner,  when  that  is  the  case,  therein  designated.  A  few 
cases,  as  we  have  seen,  uphold  simple  promises  of  this  kind. 
Perhaps  two  or  more  separate  promises,  made  by  the 
donors  with  knowledge  of  one  or  more  of  them  would  be 
construed  as  resting  upon  the  same  consideration  as  if 
they  were  all  made  jointly  by  the  signing  of  the  same  in- 
strument. But  a  note  of  the  donor,  where  no  other  note 
or  notes  are  given,  rests  upon  a  different  ground,  so  far  as 
mutual  promises  are  concerned,  from  the  promises  of  two 
or  more.  This  distinction  was  draAvn  at  quite  an  early  date 
by  Chancellor  Walworth.  "  As  a  subscription  of  a  single 
individual,  agreeing  to  make  a  donation  to  another  indi- 
vidual or  to  a  corporation  for  the  benefit  of  the  donee 
merely,  I  should  have  great  difficulty  in  finding  a  valid 
consideration  to  sustain  a  promise  to  give  without  any 
equivalent  therefor,  and  without  any  binding  agreement 
on  his  part  which  would  be  a  loss  or  injury  to  him.  And 
it  can  hardly  be  said  to  be  a  consideration  to  support  a 
promise  of  a  donor  to  give  at  a  future  time,  that  the  donee 
agreed  to  receive  and  invest  the  fund  when  paid  and  to 

above.  It  was  affirmed  upon  the  distinct  ground  that,  as  the  clinrcli  had  not 
agreed  to  do  anything  if  the  subscription  was  made,  nor  had  assumed  any  liability 
nor  done  anything  because  of  the  promise,  the  contract  was  invalid  :  112  N.  Y. 
517 ;  S.  C.  21  N.  Y.  St.  Rep.  503. 


284  Gifts. 

apply  it  to  the  payment  of  his  debts  generally,  or  any  par- 
ticular class  of  his  debts ;  or  to  apply  it  to  the  payment 
of  such  sums  as  he  may  thereafter  agree  to  give  to  his  serv- 
ants for  their  services.  .  .  .  Neither  is  there  any  difficulty 
in  my  mind  in  finding  a  good  and  sufficient  consideration 
to  support  a  subscription  of  this  kind  made  by  several  in- 
dividuals. Every  member  of  society  has  an  interest  in 
supporting  the  institutions  of  religion  and  of  learning  in 
the  community  where  he  resides.  And  where  he  consents 
to  become  a  subscriber  with  others  to  raise  a  fund  for  that 
purpose,  the  real  consideration  for  his  promise  is  the 
promise  which  others  have  already  made  or  which  he  ex- 
pects them  to  make,  to  contribute  to  the  same  object.  In 
other  words,  the  mutual  promises  of  the  several  subscrib- 
ers to  contribute  toward  the  fund  to  be  raised  for  the 
specified  object  in  which  all  feel  an  interest,  is  the  real 
consideration  of  the  promise  of  each.  For  this  purj)Ose 
also,  the  various  subscriptions  to  the  same  paper  and  for 
the  same  object,  although  in  fact  made  at  different  times, 
may  in  legal  contemplation  be  considered  as  having  been 
made  simultaneously.  The  consideration  of  the  promise, 
therefore,  is  not  any  consideration  of  benefit  received  by 
each  subscriber  from  the  religious  or  literary  corporation 
to  which  the  amount  of  his  subscription  is  made  payable, 
nor  is  his  promise  founded  upon  any  consideration  or  in- 
jury which  the  payee  has  sustained  or  is  to  sustain  or  be 
put  to  for  his  benefit.  But  the  consideration  of  the 
promise  of  each  subscriber  is  the  corresponding  prom- 
ise which  is  made  by  other  subscribers."  ^  But  upon 
appeal  the  Court  of  Appeals  totally  disagreed  with  the 
Chancellor  in  so  far  as  he  held  that  if  several  sub- 
scribe to  a  common  cause  the  subscription  was  valid  ;  and 
held  that  the  endowment  of  a  literary  institution  was  not 

'Stewart  v.  Hamilton  College,  2  Denio,  403. 


Notes  and  Choses  in  Action.  285 

a  sufficient  consideration  to  upliold  a  subscription  to  a  fund 
designed  for  that  object.  The  case  has  met  with  decided 
disfavor,  and  may  be  considered  of  little  weight  as  an  au- 
thority.^ So,  in  Massachusetts,  a  like  doctrine  has  been 
followed  ;  indeed,  it  may  be  said  that  the  Supreme  Court 
in  that  State  has  gone  to  a  considerable  length  in  holding 
the  kind  of  contracts  under  discussion  void.  In  that  case, 
at  a  meeting,  several  persons  announced  that  they  would 
each  give  a  named  sum  for  the  purpose  of  repairing  a 
church,  and  the  secretary  of  the  meeting  wrote  down  their 
names  and  the  amounts.  The  meeting  was  called  for  the 
purpose  of  securing  money  to  repair  the  church.  The 
defendant  subscribed,  and  afterward  orally  ratified  his 
subscription.  Being  treasurer  of  the  church,  he  collected 
part  of  the  subscriptions.  Trouble  arising,  he  withdrew 
from  the  office  of  treasurer,  upon  request  made,  and  there- 
afterward  ceased  all  j^articipation  in  the  affairs  of  the 
church  society,  except  that  he  remained  one  of  the  trus- 
tees. The  church  repairs  were  made,  and  then  an  action 
was  brought  to  recover  from  the  defendant  the  amount  of 
his  subscription.  There  was  conflicting  evidence  as  to 
whether  anything  was  done,  or  any  liability  incurred  or 
obligation  assumed,  by  the  plaintiff  in  reliance  upon  this 
particular  subscription.  Upon  these  facts  the  court  de- 
cided that  the  defendant  was  not  liable.  The  court,  in 
explanation  of  its  decision,  said  :  "  In  every  case  in 
which  this  court  has  sustained  an  action  upon  a  promise 
of  this  description,  the  promisee's  acceptance  of  the  de- 
fendant's promise  was  shown,  either  by  express  note  or 
contract,  assuming  a  liability  or  obligation,  legal  or  equita- 
ble, or  else  by  some  unequivocal  act,  such  as  advancing  or 
expending  money,  or  erecting  a  building,  in  accordance 

'  Hamilton  College  v.  Stewart,  1  N.  Y.  581.     Doctrine  affirmed  in  Presbyterian 
Church  of  Albany  v.  Cooper,  112  N.  Y.  517. 


286  Gifts. 

with  the  terms  of  the  contract,  and  upon  the  faith  of  the 
defendant's  promise."  The  court  seemed  willing  to  admit 
that,  as  between  the  donors  or  subscribers,  the  contract  of 
subscription  might  be  valid,  but  not  as  between  the  donee 
and  the  donors.  "  The  facts  in  the  present  case,"  said  the 
court,  "  show  no  benefit  to  the  defendant,  and  no  note  or 
contract  by  the  plaintiff,  and,  although  it  appears  that  the 
chapel  was  afterward  built  by  the  plaintiff,  it  is  expressly 
stated  in  the  bill  of  exceptions  that  the  learned  judge  who 
jDresided  at  the  trial  did  not  pass  upon  the  question  of  fact 
whether  the  j^laintiif  had,  in  reliance  upon  the  promise 
sued  on,  done  anything  or  incurred  or  assumed  any  lia- 
bility or  obligation.  It  does  not  therefore  appear  that 
there  was  any  legal  consideration  for  the  promise  upon 
which  this  action  is  brought."  ^  But  where  a  donor  j^ro- 
posed  that  if  a  certain  person  would  raise  a  named  sura 
and  pay  it  to  a  corporation  for  the  purpose  of  erecting  a 
monument,  he  would  also  pay  a  certain  sum,  the  raising 
of  the  sum  named  by  the  person  to  whom  the  proposition 
was  made,  and  the  payment  to  the  corporation,  was  held  to 
constitute  a  valid  contract,  which  could  be  enforced.^ 

1  Cottage  Street  M.  E.  Church  v.  Kendall,  121  Mass.  528  ;  Low  v.  Foss,  121  Mass. 
531. 

^  La  Fayette  County  v.  Magoon,  73  Wis.  627.  Fee  Gammon  Theological  Semi- 
nary  v.  Robbins,  128  Ind.  85  ;  Simpson  Centenary  College  v.  Tuttle,  71  la.  596. 
See,  also,  Garrigues  v.  Home,  etc.,  Society,  3  Ind.  App.  91. 


CHAPTER  XII. 


BANK  CHECKS  AND  DEPOSITS. 


311.  Division  of  Subject. 

Checks. 

312.  Definition  of  Check. 

313.  Checks  Xot  Bills  of  Exchange. 

314.  Check   of  Donor  as   a  Gift   Inter 

Vivos. 

315.  Check  of  Donor  Accepted  or  Caslied. 

316.  Payment  Prevented  by  Donee  Until 

After  the  Donor's  Death. 

317.  Check  of  Third  Person. 

318.  Eights   of  Bona  Fide   Holders  of 

Check  Given  Inter  Vivos  But 
Not  Cashed  Before  Donor's 
Death. 

319.  Donor's  Check  Not  Valid  as  a  Do- 

natio Mortis  Causa. 

320.  Check  of  Stranger  the  Subject  of  a 

Gift  Mortis  Causa. 

321.  No  Intention  to  Give  Proceeds  of 

Check. 

322.  Donor's   Check    Exchanged   for  a 

Stranger's  Bank  Deposit. 

323.  Certificate  of  Deposit. 

324.  Money     Deposited     in     Name    of 

Donee. 
3^5.  Same  Continued — Revocation — Es- 
toppel. 

326.  Acceptance  of  Deposit — Donee  Hav- 

ing no  Knowledge  of  it — Donor 
Retaining  Control  Over  Deposit. 

327.  Gift  of  Bank-Stock  Does  Not  Pass 

the  Deposit. 

328.  Wife     Retaining    After    Marriage 

Money  She  Had  on  Deposit — 
Husband  as  Trustee. 


Sayings  Bank  Deposits. 

329.  Deposit  in  Savings  Bank  in  Do- 

nee's Name — Gift  Inter  Vivos 
— Presumption  of  Acceptance. 

330.  Gift  of  Deposit  Book  of  a  Sav- 

ings  Bank   is   a   Gift   of  the 
Fund. 

Deposit  Book  of  a  Savings  Bank 
Must  he  Delivered — Acquies- 
cence. 

Gift  of  Deposit  Book  is  Not  a 
Gift  of  the  Fund  — English 
Rule. 

Donor  Reserving  Interest  on  De- 
posit. 
334.  Redelivery  of  Deposit   Book  to 
Donor. 

Deposit  in  Two  Names — Gift  to 
Survivor. 

Gift  of  a  Special  Deposit. 

Overthrowing    Presumption    of 
Gift    Arising    from    Fact    of 
Deposit    in    Alleged    Donee's 
Name. 
Trust  Raised  by  a  Deposit  of 
Money. 

Trust  Raised  by  Donor  Deposit- 
ing Money  in  Bank — Notice 
of  Trust — Revocation. 

Same  Subject — Retaining  Con- 
trol of  I'und. 

340.  Same  Continued — Evidence — Re- 

vocation. 

341.  Same    Continued — Some    Massa- 

chusetts Cases. 


331. 


332. 


333. 


335. 

336. 
337. 


338. 


339. 


311.  Division  of  Subject. — The  subject  of  gifts  of 
bank  accounts  or  bank  deposits  may  be  divided  into  the 

287 


288  Gifts. 

subject  of  (1)  checks,  (2)  gifts  of  bank-books  or  certifi- 
cates of  deposits,  and  (3)  savings  bank  deposits. 

Checks. 

312.  Definition  of  a  Check. — A  check  has  been  de- 
fined by  an  author  of  established  rej^utation  for  accuracy, 
to  be  "  an  inLand  bill  of  exchange  drawn  upon  a  banker, 
payable  to  bearer  on  demand."  ^  Another  authority  has 
defined  it  to  be  "a  bill  of  exchange  payable  on  demand."^ 
"  A  check  is  a  bill  of  exchange  drawn  by  a  customer  on 
his  banker  payable  on  demand."  ^  It  has  been  defined 
by  the  Supreme  Court  of  Massachusetts  to  be  "  an  order 
to  pay  the  holder  a  sura  of  money  at  the  bank,  on  pre- 
sentment of  the  check  and  demand  of  the  money ;"  and 
it  is  added  that  "  no  previous  notice  is  necessary,  no  ac- 
ceptance is  required  or  expected,  it  has  no  days  of  grace. 
It  is  payable  on  presentment  and  not  before."  '*  In  New 
Jersey  a  better  definition  of  a  check  has  been  given  in 
some  respects  than  any  we  have  quoted;  for  it  is  said  that 
"a  check  or  draft  is  a  request  to  pay  money  to  the  drawer, 
or  his  order,  as  a  right,  if  he  have  funds,  but  in  some 
measure  as  a  matter  of  favor,  if  he  have  not.  If  there 
be  funds  belonging  to  the  drawer,  it  is  a  demand  of  them; 
if  not,  it  is  a  request  of  credit  to  that  amount."  ^  In  an 
Indiana  case  it  is  said  that  "  a  check  is  defined  to  be  a 
written  order  or  request,  addressed  to  a  bank,  or  to  j^er- 
sons  carrying  on  the  business  of  bankers,  by  a  party  hav- 
ing money  in  their  hands,  requesting  them  to  pay  on 
presentment,  to  another  person,  or  to  him  or  bearer,  or  to 
him  or  order,  a  certain  sum  of  money  specified  in  the  in- 
strument." ^     The  distinguishing  feature  of  all  these  defi- 

1  Byles  on  Bills,  13. 

2  Edwards  on  Bills,  396. 

'  Benjamin  Chalmer's  Bills  and  Notes,  art.  254. 

*  Billiard  v.  Randall,  1  Gray,  p.  606. 

^  State  V.  Rickey,  4  Halst.,  p.  312. 

^GriflSn  v.  Kemp,  46  Ind,  172.     This  is  the  definition  of  Burrill.     Harrison  v. 


Bank  Checks  and  Deposits.  289 

nitions  is  that  tliey,  especially  those  of  the  courts,  regard 
a  check  nothing  more  than  a  direction,  request,  or  order 
upon  a  bank  or  banker  to  j)ay  out,  on  account  of  the 
drawer,  a  certain  named  sum  of  money.  Indeed,  in  an 
Ohio  case,  it  is  said  that  "  a  check  is  but  an  order  to  pay 
the  holder  so  much  money  out  of  a  fund  in  the  drawee's 
bonds,  deposited  for  the  express  purpose  of  being  recalled 
by  draft,  at  the  option  of  the  customer."  ^ 

313.  Checks  not  Bills  of  Exchaxge. — Several  of  the 
definitions  quoted  above  put  checks  upon  a  level  with 
inland  bills  of  exchange  (for  no  one  will  contend  that  they 
are  like  foreign  bills  of  exchange,  unless  drawn  upon  a 
bank  in  a  foreign  country)  ;  but  they  are  not  in  all  re- 
spects alike.  Perhaps  a  better  idea  of  a  check  can  be  ob- 
tained by  comparing  it  with  an  inland  bill  of  exchange, 
and  seeing  wherein  they  are  alike  and  wherein  they 
differ  ;  and  for  this  purpose  we  make  the  following  quota- 
tion from  an  opinion  of  the  Supreme  Court  of  the  United 
States  :  "  Bank  checks,"  says  the  court,  "  are  not  inland 
bills  of  exchange,  but  have  many  of  the  properties  of  such 
commercial  paper ;  and  many  of  the  rules  of  the  law  mer- 
chant are  alike  applicable  to  both.  Each  is  for  a  specific 
sum  payable  in  money.  In  both  cases  there  is  a  drawer, 
a  drawee,  and  a  j^ayee.  Without  acceptance,  no  action 
can  be  maintained  by  the  holder  upon  either  against  the 
drawer.  The  chief  points  of  difference  are  that  a  check 
is  alw^ays  drawn  on  a  bank  or  banker.  Xo  days  of  grace 
are  allowed.  The  drawer  is  not  discharged  by  the  laches 
of  the  holder  in  presentment  for  payment,  unless  he  can 
show  that  he  has  sustained  some  injury  by  the  defiiult.  It 
is  not  due  until  payment  is  demanded,  and  the  statute  of 

Wright,  ]00  Tnd.  515;  S.  C.  50  Am.  Rep.  805;  Bowen  v.  Newell,  5  Sandf.,  p. 
328. 
^  McGregor  r.  Loomis,  1  Dis.  (Ohio),  p.  256. 
19 


290  Gifts. 

limitations  runs  only  from  that  time.  It  is  by  its  face  tlie 
appropriation  of  so  much  money  of  the  drawer  in  the 
hands  of  the  drawee  to  the  payment  of  an  admitted  lia- 
bility of  the  drawer.  It  is  not  necessary  that  the  drawer 
of  a  bill  should  have  funds  in  the  hands  of  the  drawee. 
A  check  in  such  a  case  would  be  a  fraud.  All  the  author- 
ities, both  English  and  American,  hold  that  a  check  may 
be  accepted,  though  acceptance  is  not  usual.  By  the  law 
merchant  of  this  country,  the  certificate  of  the  bank  that 
a  check  is  good  is  equivalent  to  acceptance.  It  implies 
that  the  check  is  drawn  upon  sufficient  funds  in  the  hands 
of  the  drawee,  that  they  have  been  set  aj^art  for  its  satis- 
faction, and  that  they  shall  be  so  applied  whenever  the 
check  is  presented  for  payment.  It  is  an  undertaking  that 
the  check  is  good  then  and  shall  continue  good,  and  this 
agreement  is  as  binding  on  the  bank  as  its  notes  of  circu- 
lation, a  certificate  of  deposit  payable  to  the  order  of  the 
depositor,  or  any  other  obligation  it  can  assume.  The  ob- 
ject of  certifying  a  check,  as  regards  both  parties,  is  to 
enable  the  holder  to  use  it  as  money.  The  transferee  takes 
it  with  the  same  readiness  and  sense  of  security  that  he 
would  take  the  notes  of  the  bank.  It  is  available  also  to 
him  for  all  the  purposes  of  money.  Thus  it  continues  to 
perform  its  important  functions  until  in  the  course  of 
business  it  goes  back  to  the  bank  for  redemption  and  is 
extinguished  by  payment."  ^  Speaking  upon  this  subject, 
the  Supreme  Court  of  Indiana  said  :  "  The  circumstances 
in  which  tliey  [checks]  principally  differ  from  bills  of 
exchange,  or  at  least  from  bills  of  exchange  in  ordinary 
use  and  circulation,  are:  1st.  They  are  always  draw^n  on 
a  bank,  or  on  bankers,  and  are  payable  on  presentment 
without  any  days  of  grace.  2d.  They  require  no  accept- 
ance as  distinct  from   prompt  payment.     3d.   They  are 

1  Merchants'  National  Bank  v.  State  Bank,  10  Wall.  604,  647. 


Bank  Checks  and  Deposits.  291 

always  supposed  to  be  drawn  uj)on  a  previous  deposit  of 
funds.  A  check  so  far  differs  from  a  bill  of  exchange  or 
note,  that  its  payment  may  be  countermanded  by  the 
drawer  before  it  is  accepted  or  paid  by  the  bank  ;  and  so 
the  death  or  insolvency  of  the  drawer  is  in  the  nature  of 
a  countermand  of  the  payment,  and  the  bank  ought  not  to 
pay  ;  but  if  the  bank  pays  without  notice  of  the  death,  it 
is  said  to  be  a  good  payment."  ^  "  A  cheque,"  -  said  Baron 
Parke,  "  does  not  require  acceptance  ;  in  the  ordinary 
course  it  is  never  accepted ;  it  is  intended  for  circulation, 
it  is  given  for  immediate  payment ;  it  is  not  entitled  to 
days  of  grace ;  and  though  it  is,  strictly  speaking,  an  order 
upon  a  debtor  by  a  creditor  to  pay  to  a  third  person  the 
whole  or  part  of  a  debt,  yet,  in  the  ordinary  understand- 
ing of  persons,  it  is  not  so  considered.  It  is  more  like  an 
appropriation  of  what  is  treated  as  ready  money  in  the 
hands  of  the  banker,  and  in  giving  the  order  to  appro- 
priate to  a  creditor,  the  person  giving  the  cheque  must  be 
considered  as  the  person  primarily  liable  to  pay,  who 
orders  his  debt  to  be  paid  at  a  particular  place,  and  as 
being  much  in  the  same  position  as  the  maker  of  a  promis- 
sory note,  or  the  acceptor  of  a  bill  of  exchange,  payable 
at  a  particular  jolace  and  not  elsewhere,  who  has  no  right 
to  insist  on  immediate  presentment  at  that  place."  ^  A 
striking  characteristic  of  checks  is  that  they  are  payable 
upon  demand  made  at  the  bank  upon  which  they  are 
drawn.  If  an  instrument  in  the  form  of  a  check  is  made 
payable  at  a  future  day,  it  is  usually  regarded  as  an  inland 

'  Griffin  r.  Kemp,  4G  Ind.  172.  See  Harrison  v.  Wright,  100  Ind.  515  ;  S.  C. 
50  Amer.  Rep.  805. 

"  '■  Oheqiie"  U  the  English  spelling,  in  imitation  of  exchequer,  witli  which  it  is 
remotely  connected:  Century  Diet,  check,  No.  1. 

^Mullick  V.  Radakissen,  9  Moore  P.  C.  46,  G9.  Sec  Lynn  v.  Bell,  10  It. 
Rep.  C.  L.  487 ;  Keene  v.  Beard,  8  C.  B.  N.  S.,  p.  3S0  ;  Ilopkinson  v.  Forster,  L. 
R.  19  Eq.  74. 


292  Gifts. 

bill  of  exchange ;  ^  but  in  somes  States  it  is  treated  as  a 
eheck.^ 

314.  Check  of  Donor  as  a  Gift  Inter  Vivos. — One 
of  the  earliest,  if  not  the  earliest,  cases  on  this  subject  was 
decided  in  1793.  Suit  was  brought  by  the  holder  of  a 
check  for  £200  against  the  administrators  of  the  estate  of 
the  drawer  to  recover  from  the  estate  the  amount  of  the 
check.  The  gift  was  not  made  in  view  of  death,  and 
therefore  a  gift  inter  vivos.  The  gift  of  the  check  was 
made  several  days  before  the  testator  died,  when  he  was 
not  apprehensive  of  death ;  and  upon  these  points  there 
was  no  dispute.  But  the  court  held  that  the  holder  of 
the  check,  the  donee,  could  not  recover  because  she  had 
not  tendered  it  to  the  banker  upon  whom  drawn  before 
the  death  of  the  donor  and  drawer,  the  court  saying  that 
"  the  authority  to  pay  clearly  expired  with  the  death  of 
the  testator."  But  the  court  added  that,  if  the  check 
had  been  "  received  at  the  banker's  before  notice  of  the 
death  of  the  party,  or  immediately  after,  it  might  have 
availed ;  but  for  want  of  activity  in  the  holder  of  it,  it  is 
become  of  no  effect."  ^    About  two  weeks  before  her  death, 

^  Glenn  t'.  Noble,  1  Blackf.  104;  Minturn  v.  Fisher,  4  Cal.  35;  Bowen  v. 
Newell,  13  N.  Y.  290;  Morrison  v.  Bailey,  5  Ohio  St.  13;  but  see  Andrew  v. 
Blachly,  11  Ohio  St.  89,  where  the  nature  of  the  instrument  was  determined  by 
the  intention  of  the  parties. 

-  Champion  v.  Gordon,  70  Pa.  St.  474 ;  Law.son  v.  Richards,  6  Phila.  179  ;  West- 
minister Bank  v.  Wheaton,  4  E-  I.  30. 

3  Tate  V.  Hilbert,  4  Brown,  Ch.  286;  S.  C.  2  Ves.  Jr.  111.  From  this  dictum, 
that,  if  the  check  had  been  piid  after  the  drawer's  death,  but  before  notice  of  it 
by  the  bank,  the  bank  would  have  been  protected,  has  arisen  the  statement, 
by  all  the  text  writers,  that  a  payment  under  such  circumstances  is  valid  so  far  as 
the  bank  is  concerned.  In  tlie  instance  of  a  check  given  for  value,  Mr.  Daniels 
has  denied  the  soundness  of  this  doctrine,  claiming  that  payment  after  notice  of 
the  drawer's  death  is  a  protection  to  the  banker;  but  at  the  same  time  admitting 
that,  if  the  check  were  a  gift  and  the  banker  knew  that  fact  at  the  time  of 
payment,  he  would  not  be  protected  if  he  paid  it:  3  Vir.  L.  Jr.  323  (1879); 
same  article,  13  Irish  L.  T.  448,  taken  from  the  Bankers'  Macjazine  for  1879. 


Banh  Cliecks  and  Deposits.  293 

a  mother  gave  her  daughter  a  check  on  a  bank,  but  the 
daughter  did  not  present  it  for  acceptance  or  payment 
until  after  the  death  of  her  mother.  Payment  was  de- 
clined and  a  suit  instituted  by  the  daughter  against  the 
bank,  but  a  recovery  was  denied.  "  It  seems  clear  to  us," 
said  the  court,  "  that  until  the  check  was  either  j)aid  or 
accepted  the  gift  was  incomplete,  and  that  in  the  absence 
of  such  payment  or  acceptance  the  death  of  the  drawer 
operated  as  a  revocation  of  the  check.  It  is  well  settled 
that,  in  order  to  constitute  a  valid  gift,  there  must  be  a 
complete  delivery  of  the  subject  of  the  gift,  either  actual 
or  constructive.  The  check  in  the  present  instance  was 
a  mere  order  or  authority  to  the  payee  to  draw  the 
money ;  and,  being  without  consideration,  it  was  subject 
to  be  countermanded  or  revoked  while  it  remained  un- 
acted on  in  the  hands  of  the  payee."  ^ 

315.  Check  of  Donor  Accepted  or  Cashed. — 
Where  a  check,  however,  has  been  cashed  by  the  drawee 
before  the  death  of  the  drawer,  the  money  received  by 
virtue  of  the  check  is  a  valid  gift,  and  is  not  revoked  by 
the  death  of  the  donor.  Thus  the  Civil  Code  of  Louis- 
iana provided  that  a  "manual  gift — that  is,  the  giving  of 
corporeal  movable  effects  by  a  real  delivery,  is  not  subject 
to  any  formality."  A  donor  gave  his  check,  j^ayable  to 
his  donee,  who,  on  the  same  day  drew  the  money  named 
therein  on  presentation  to  the  drawee ;  it  was  held  that 
the  gift  was  perfect,  and  was  not  revoked  by  the  death  of 
the  donor  a  day  or  two  thereafter."  "An  actual,  real  de- 
livery of  a  corporeal  movable  effect  (money)  was  made," 
said  the  court,  "and  no  other  formality  was  necessary. 

^  Simmons  v.  Cincinnati  Savings  Soc,  31  Ohio  St.  457  ;  S.  C,  affirming  (5  Amer. 
L.  Rec.  441.  The  gift  in  this  case  was  treated  as  one  inter  vivos,  although  it 
might  have  been  deemed  one  mortis  cavisa. 


294  Gifts. 

The  check  was  the  means  or  vehicle  of  delivery."^  So, 
too,  if  the  check  has  been  accepted  by  the  drawee  before 
the  death  of  the  drawer  it  would  seem  to  be  a  valid  gift 
of  the  money  named  therein  ;  for  then  the  check  becomes 
a  contract  between  the  donee  and  drawee,  and  the  accept- 
ance operates  as  an  assignment  of  enough  of  the  donor's 
funds  in  the  hands  of  the  drawee  to  satisfy  it.'^  This 
would  be  more  so  the  fact  if  the  drawee  should  have  done 
anything  transferring  the  amount  of  the  check  from  the 
drawer's  account  to  the  draw^ee's  credit  before  the  donor's 
and  drawer's  death.  But  if  a  donor  should  draw  a 
check  in  favor  of  the  donee  upon  a  bank  where  he  had 
no  funds,  and  the  bank  accept  but  not  pay  it  before  his 
death,  we  do  not  think  the  donee  could  enforce  its  pay- 
ment, for  the  reason  that  the  check  and  its  acceptance  is 
based  upon  no  consideration,  and  there  was  no  delivery 
of  the  thin":  oiven  before  the  death  of  the  donor.  No 
money,  after  the  donor's  death,  could  be  placed  in  the 
bank  that  would  be  subject  to  the  check,  for  such  money 
could  not  be  the  money  of  the  donor  who,  at  the  time  of 
its  receipt  by  the  bank,  was  dead.  The  law  does  not  rec- 
ognize a  dead  man  as  the  owner  of  projDcrty.^ 

316.  Payment  Prevented  by  Drawee  Until  After 
THE  Donor's  Death. — But  a  check  not  paid  before  the 
donor's  death  may  be  enforced  thereafter,  if  the  payment 
has  been  delayed  until  after  such  death  by  an  act  or  the 

'Succession  of  De  Pouilly,  2"2  La.  Ann.  97. 

^Simmons  v.  Cincinnati  Savings  Society,  supra.  Only  a  dictum  to  this  effect 
occurs  in  the  above  case,  and  we  know  of  no  case  directly  in  point.  But  the  rule 
laid  down  in  the  text,  it  seems  to  us,  is  undoubtedly  correct  in  the  main. 

'  See  Bromley  v.  Brunton,  6  L.  R.  Eq.  275  ;  S.  C.  37  L.  J.  Ch.  902 ;  18  L.  T.  N.  S. 
62S ;  16  W.  R.  1006,  where  it  was  said  :  "  The  gift  in  this  case  being  made  in  the 
form  of  a  check  drawn  on  the  bankers  of  the  donor,  if  there  had  been  no  funds 
in  the  hands  of  the  bankers,  then,  of  course,  there  would  have  been  an  incom- 
pleteness in  the  gift  on  the  part  of  the  donor." 


Bank  Checks  and  Dejyosits.  295 

fault  of  the  drawee,  and  without  the  neglect  or  laches  of 
the  donee.  Thus  a  donor  gave  a  check  for  £200  on  the 
14th,  and  the  donee  presented  it  to  the  drawee  bank  the 
next  day,  but  payment  was  refused  for  the  reason  that 
the  signature  differed  from  the  usual  signature  of  the 
donor,  and  the  same  refusal  was  made  on  the  IGth,  and  on 
the  17th  the  donor  died,  the  check  not  having  been  paid  ; 
it  was  held  that  the  donee  could  enforce  a  claim  for  the 
amount  of  the  check  against  the  executors  of  the  donor, 
who  had  drawn  the  funds  from  the  bank  against  which 
the  check  was  drawn,  and  which  were  sufficient  to  satisfy 
the  check  at  the  time  of  its  second  presentation.  "  The 
reason,"  said  Vice-Chancellor  Stuart,  "  why  they  did  not 
pay  it  was  one  proceeding  from  their  minds — they  doubted 
the  authenticity  of  the  donor's  signature,  and  the  result 
is  that  the  funds  which  the  donor  had  dedicated  to  the 
purpose  of  this  gift,  through  no  act  of  the  donor,  and 
throuoh  no  fault  of  the  donee,  came  into  the  hands  of  the 
executors  of  the  donor.  I  conceive  that,  under  these  cir- 
cumstances, no  further  act  was  necessary  on  the  part  of 
the  donor  to  make  the  gift  complete.  The  failure,  so  far 
as  the  gift  has  failed  through  non-payment  to  this  time, 
occurred  through  the  deftiult  of  third  parties,  whose  duty 
it  w^as  to  pay  it.  The  effect  of  the  check  was  to  appropriate 
so  much  of  the  donor's  money,  and  my  ojiinion  is  that  the 
funds,  the  subject  of  the  gift,  are  in  the  hands  of  the  ex- 
ecutors just  as  much  liable  to  the  payment  of  the  check  as 
they  were  in  the  hands  of  the  banker."  ^ 

1  Bromley  v.  Bmnton,  6  L.  R.  Eq.  275  ;  S.  C.  37  L.  J.  Cli.  902  ;  IS  L.  T-  62S  ;  16 
W.  R.  1006.  Where  the  donor  delivered  a  check  to  the  donee,  part  of  which  wns 
to  be  paid  by  the  donee  to  B,  and  the  clieck  was  cashed  before  the  donors  death, 
it  was  held  that  B  could  hold  the  donee  as  trustee  for  the  part  due  him,  although 
he  knew  nothing  of  the  gift  until  after  the  donor's  death :  Tate  v.  Leithead,  Kay, 
658  ;  S.  C.  23  L.  J.  Ch.  736.  So  where  a  donor  executed  a  letter  of  attorney  to 
transfer  a  savings  bank  loan  and  handed  it,  with  the  certificate  of  the  loan,  to  C, 
with  instructions  to  sell  the  loan,  pay  ceitain  charitable  legacies  with  the   pro- 


296  Gifts. 

317.  Check  of  Third  Person. — A  check  j^ayable  to 
the  donor  or  bearer  is  ca^^able  of  being  made  a  gift  inter 
vivos  or  mortis  causa.  In  such  a  case  the  mere  delivery, 
accompanied  by  words  of  gift  is  sufficient ;  and  if  either  a 
gift  inter  vivos  or  mortis  causa  it  need  not  be  presented 
for  ^^ayment  until  after  the  death  of  the  donor.^  In  a 
Louisiana  case  it  was  said  :  "  But  the  check  in  question 
was  not  of  Hampton  Elliott's  [the  donor]  drawing.  It 
was  a  check  drawn  to  his  order.  The  moment  he  in- 
dorsed it  and  handed  it  over  to  Mrs.  Risley  [the  donee], 
his  projDerty  in  it  ceased.  It  was  not  his  money  which  the 
bank  paid  when  it  paid  the  check.  It  was  Bretton  & 
Kountz's  [the  drawers']  money.  The  bank  paid  under 
instructions  from  them  and  not  under  any  mandate  from 
Elliott.  A  check  is  not  an  obligation.  It  is  an  uncon- 
ditional order  to  pay.  It,  in  fact,  represents  money,  and 
to  all  practical  intents  is  money.  When,  therefore,  El- 
liott gave  the  check  in  question,  indorsed  by  him,  to  Mrs. 
Bisley,  it  was  money  which  he  gave  her,  and  which  she 
reduced  to  her  possession  when  she  took  it."  ^  But  in  all 
such  instances  there  must  be  a  comj^lete  delivery  of  the 
check.  Thus  where  a  father  took  a  check  he  had  re- 
ceived in  payment  of  a  mortgage  and  said  to  his  wife  "  I 
give  this  to  baby  ;  it  is  for  himself,  and  I  am  going  to 
put  it  away  for  him,  and  will  give  him  a  great  deal  more 
along  with  it;"  and  he  then  put  the  check  into  the  baby's 
hand  (who  was  only  nine  months  old),  and  then  took  it 
back  for  the  purpose  of  locking  it  in  his  safe,  and  did  so ; 
and  on  the  succeeding  day  he  told  his  solicitor  he  in- 

ceeds,  and  have  the  remainder  set-off  to  B  as  a  gift;  and  C  sold  the  loan,  receiving 
in  payment  a  check  drawn  to  B's  order,  which  he  retained  until  the  donor's 
death ;  it  was  held  that  there  was  a  com[)leted  gift  during  the  lifetime  of  the 
donor :  McGlade's  Appeal,  99  Pa.  St.  338. 

1  Riiodes  V.  Childs,  64  Pa.  St.  18  ;  Gourley  v.  Linsenbigler,  51  Pa.  St.  345. 

*  Burke  v.  Bishop,  27  La.  Ann.  465;  S.  C.  21  Araer.  Rep.  567. 


Bank  Checks  and  Deposits.  297 

tended  to  add  £100  to  it,  and  invest  it  for  tlie  infant ; 
and  within  a  week  said  to  the  same  solicitor  that  he  was 
coming  to  his  office  to  alter  his  will,  that  he  might  take 
care  of  his  child,  but  did  not  do  so,  dying  within  a  few 
days ;  it  was  held  that  there  was  no  gift,  nor  was  there  a 
declaration  of  trust  binding  upon  him  and  his  estate.^ 
But  where  ^^roperty  was  the  subject  of  the  gift,  and  was 
sold  by  the  person  into  whose  hands  it  was  delivered  with 
instructions  to  sell  it  and  pay  a  part  over  to  the  donee ; 
and  such  person  did  sell  it,  and  received  a  check  in  pay- 
ment, payable  to  the  donor's  order,  which  was  not  cashed 
until  after  such  donor's  death,  it  was  held  that  there  was 
a  valid  gift  entitling  the  donee  to  the  proceeds  of  the 
check.^ 

318.  Rights  of  Boxa  Fide  Holdees  of  Check 
Given  Inter  Vivos  Indorsed  But  Not  Cashed 
Before  Donor's  Death. — Suppose  a  check  is  given 
and  the  donee  indorses  it  for  value,  before  the  death  of 
the  donor,  and  it,  in  the  usual  course  of  business,  does 
not  reach  the  drawee  until  after  the  death  of  the  donor ; 
or  suppose  the  indorsee  has  been  guilty  of  delay  (laches, 
if  you  please) ,  in  presenting  it  for  payment ;  or  that  it  is 
an  old  check  when  indorsed ;  or  that  the  indorsee  knew 
at  the  time  of  indorsement  to  him  by  the  donee  that  it 
was  a  gift ;  or,  lastly,  that  he  knew  it  was  a  gift  but  an 
intermediate  indorsee  did  not  have  such  knowledge  and 
took  it  for  value  in  the  usual  course  of  business,  what  is 
the  holder's  rights  ?  It  is  easier  to  ask  these  questions 
than  to  answer  them.     They  have,  however,  been  in  part 

I  Jones  r.  Lock,  1  L.  R.  Ch.  Div.  25  ;  S.  C.  35  L.  J.  Ch.  117;  llJur.  N.S.913; 
Reddel  v.  Dobree,  10  Sim  244. 

^  McGlade's  Appeal,  99  Pa.  St.  338.  In  England  a  check  payable  to  the  donor 
may  be  the  subject  of  a  gift,  although  the  donor  fail  to  assign  it  to  donee :  Clem- 
ent V.  Chesseman,  27  Ch.  Div.  631  ;  S.  C.  54  L.  J.  Ch.  158;  33  AV.  R.  40. 


298  Gifts. 

answered  by  the  courts.  An  English  testator  left  Eng- 
land in  October,  1871,  and  went  to  San  Remo,  Italy.  On 
the  oth  of  December  following,  after  he  had  been  in- 
formed that  he  could  live  only  a  few  hours,  he  drew 
a  check  on  his  London  bankers,  payable  to  his  wife  or 
order,  for  £100,  and  i^resented  it  to  her  as  a  gift.  He  re- 
covered from  the  immediate  attack ;  but  on  February  2d, 
1872,  was  again  in  a  very  weak  and  sinking  condition. 
On  the  morning  of  that  day,  at  his  direction,  a  friend 
drew  a  check  for  £250,  and  the  testator  signed  and  gave 
it  to  his  wife  as  a  gift.  These  were  gifts  mortis  causa.  His 
wife,  during  the  donor's  lifetime,  indorsed  the  checks  to 
bankers  at  San  Remo,  or  to  their  order,  and  they  were  at 
once  paid  into  their  bank.  The  testator  died  five  days 
after  he  drew  the  last  check.  The  indorsees  of  the  donee 
subsequently  indorsed  the  checks  to  other  persons,  and 
negotiated  them  in  the  ordinary  course  of  business.  After 
the  death  of  the  donor,  the  donee  drew  out  the  amount  of 
her  credit  at  the  bankers,  given  by  reason  of  the  deposit 
of  the  checks.  In  six  and  eight  days,  respectively,  the  two 
checks  were  presented  by  London  bankers,  who  had  re- 
ceived them  in  due  course  of  business  without  any  knowl- 
edge of  the  drawer's  death,  to  the  drawee  bank  for 
payment,  which  was  refused  on  account  of  the  death 
of  the  donor.  Thereupon  the  donee  was  compelled  to 
take  ujD  the  checks ;  and,  after  this  j3ayinent,  she  filed  a 
claim  against  the  executors  of  the  estate  of  the  donor  to 
recover  the  amount  named  therein.  It  was  held  that  she 
could  recover.  "  The  result  of  the  authorities,"  said  the 
court,  "  appears  to  be  that  a  gift  of  a  bill  of  exchange, 
which  is  by  its  very  nature  payable  at  a  future  day,  may 
be  a  good  donatio  mortis  causa,  but  the  gift  of  a  cheque  is 
not  valid  unless  it  is  presented  for  payment  or  paid  before 
the  death  of  the  donor.     I  am  satisfied  that  the  object  of 


Bank  Checks  and  Dtyosits.  299 

this  testator  was  to  give  these  cheques  to  his  wife.  There- 
fore, I  think  I  ought  to  do  all  I  can  to  make  the  gift  good. 
Now  I  can  really  see  no  reason  why  if  a  bill  drawn  on  a 
goldsmith  would  be  a  good  donatis  7nortis  causa  a  cheque 
should  not  be  so  too?^  A  distinction  has,  however, 
been  drawn  between  the  case  of  a  bill  of  exchange  and 
that  of  a  cheque  payable  to  bearer,  and  if  these  cheques 
had  been  payable  to  bearer  and  had  not  been  pre- 
sented for  payment  at  the  bank  on  which  they  were 
drawn  before  the  donor's  death,  I  should  probably 
have  considered  that  I  was  bound  to  hold  that  there 
was  not  a  good  gift.  But  these  are  cheques  payable 
to  order ;  and  it  is  clear  that  the  testator  knew  that 
they  could  not  be  presented  for  payment  either  on  the 
day  they  were  drawn  or  the  subsequent  day.  I  must  at- 
tribute to  him  the  knowledge  that  the  cheques  would  not 
be  paid  for  some  time,  and  on  that  ground  I  come  to  the 
conclusion  that  this  case  differs  from  the  other  cases  of 
cheques.  But  I  have  also  the  decision  of  Lord  Lough- 
borough.^ He  says :  '  If  she  had  paid  this  away  either 
for  valuable  consideration  or  in  discharging  a  debt  of  her 
own,  it  would  have  been  good  ;  or  even  if  she  had  received 
it  immediately  after  the  death  of  the  testator,  before  the 
banker  was  ap[)rised  of  it,  I  am  inclined  to  think 
no  court  would  have  taken  it  from  her.'  In  this  case  I 
have  the  very  distinction  thus  pointed  out  by  Lord  Loiujh- 
borough.  Mrs.  Pearce  [the  donee]  did  pay  away  the  pro- 
ceeds of  the  cheque,  and  it  would  seem,  amongst  the  hus- 
band's creditors.  And  I  think  that  when  a  man  gives 
his  wife  a  cheque  it  is  in  substance  as  complete  a  gift  as 
if  he  had  handed  her  the  cash."  The  court  then  points 
out  the  discrepancy  in  the  two  reports  of  the  case  quoted 

'Evidently  referring  to  Lawson  v.  Lawson,  1  P.  Wnis.  441. 
2 In  Tate  v.  Gilbert,  2  Yes.  Ill  ;  S.  C.  4  Brown  Ch.  286. 


300  Gifts. 

from,  and  says  :  "  If  there  is  any  real  discrepancy,  I  think 
that  the  report  in  Vesey  is  probably  the  more  accurate, 
and  that  it  was  intended  to  be  held  that  an  actual  deal- 
ing for  value  with  a  note  would  complete  the  gift  as  a 
valid  donatio  mortis  causa  J'  ^  If  the  indorsees  had  seen 
fit  to  proceed  against  the  executors  of  the  donor,  there  is 
no  doubt  that  the  result  would  have  been  the  same — they 
would  have  recovered.  But  this  was  a  case  of  unusual 
circumstances.  Emphasis  is  laid  upon  the  fact  that  the 
testator  knew  it  would  be  some  time  before  the  checks 
could  reach  the  bank  upon  which  they  were  drawn  ;  but 
still  it  cannot  be  well  seen  how  this  could  have  any  effect 
in  determining  whether  the  gift  was  or  was  not  a  com- 
pleted one.  For  in  every  case  of  donatio  mortis  causa 
where  it  is  incomplete  only  because  of  a  lack  of  sufficient 
delivery,  the  intention  of  the  donor  is  clearly  made  out, 
yet  that  cannot  be  used  to  bridge  over  the  absence  of  a 
delivery.  The  turning  point  in  the  case  is  that  the 
checks  had  been  negotiated  for  value  before  the  death  of 
the  donor,  and  the  indorsees,  without  notice  of  the  cir- 
cumstances under  which  they  were  given,  had  a  right  to 
insist  upon  the  validity  of  the  checks  and  their  right  to 
recover  of  the  testator's  estate  the  face  of  such  checks. 
They  undoubtedly  stood  upon  the  same  plane  as  bills  of 
exchange  drawn  by  the  donor  in  favor  of  the  donee,  and 
indorsed  by  her  for  value  before  his  death.  Under  such 
circumstances,  in  the  case  of  bills  of  exchange,  the  holder, 
for  value,  even  if  the  payee,  may  enforce  the  bills  against 
the  drawee  accepting  them  after  the  known  or  unknown 
death  of  the  drawee;^  and  there  is  one  distinction,  in 
principle,  between  a  case  of  a  check  and  one  of  a  bill  of 

'  Rolls  V.  Pearce,  5  Ch.  Div.  730 ;  S.  C.  46  L.  J.  Ch.  791  ;  36  L.  T.  438  ;  25  W. 
R.  899  ;  22  Moak.  432. 

'Cutts  V.  Perkins,  12  Mass.  206;  Billing  v.  Devaux,  3  Man.  &  Gr.  565;  Ham- 
monds V.  Barclay,  2  East.  227,  235,  236. 


Bank  Checks  and  Deposits.  301 

exchange,  altlioiigh  the  courts,  where  the  j^ayee  of  the 
check  is  the  hokler  have  dogmatically  followed  the  dic- 
tum of  Chancellor  Loughborough  in  Tate  v.  Gilbert,  to 
the  effect  that  the  demise  of  the  drawer  of  a  check  re- 
vokes the  authority  of  the  drawee  to  j)ay  it  after  notice 
of  his  death. ^ 

319.  Donoe's  Check  Not  Valid  as  a  Donatio  Mortis 
Causa. — In  Georgia  a  donor,  when  knowingly  near  his 
death,  executed  a  check  payable  to  the  claimant  and  had 
it  2^1aced  with  his  will.  It  was  clearly  his  intention  that 
the  claimant  should  have  the  sum  named  in  the  check. 
After  his  death  the  claimant,  the  payee,  made  a  demand 
upon  the  executors  for  the  check  and  on  refusal  brought 
an  action  to  recover  it.  A  right  to  recover  was  denied 
because  there  had  been  no  delivery  of  the  thing  given,^ 
A  like  result  was  reached  where  the  check  was  delivered 
to  the  payee  but  not  presented  until  after  the  death  of  the 
drawer.  The  check  was  drawn  at  night,  as  a  donatio 
mortis  causa,  and  the  donor  died  before  the  next  day 
dawned.  There  was  no  time  to  present  it  at  the  bank  for 
acceptance  or  payment.  The  donor  had  instructed  her 
solicitor  to  draw  up  a  deed  of  settlement,  but,  i^erceiving 
that  she  could  not  live  until  the  deed  was  prepared,  she 
drew  the  check  for  the  amount  to  be  named  in  the  deed, 
and  directed  an  application  to  be  made  of  the  proceeds 
in  accordance  with  the  intended  provision  of  the  deed. 
The  court  held  that  there  was  not  a  gift  mortis  causa. 

^  See  an  article  of  John  W.  Daniels  on  "The  Effect  of  the  Death  of  the  Drawer 
of  a  Check:"  3  Yir.  L.  Jr.  323;  S.  C.  13  Ir.  L.  T.  44S,  Bankers'  Magazine  for 
1879,  who  reaches  the  conclusion  that  a  holder  of  a  check  given  for  value  (hnt 
not  a  donee)  may  be  paid  by  the  drawee  after  the  notice  of  the  drawee's  death. 
See  Parsons  on  N.  &  B.,  287,  note  b.  Mr.  Morse  reaches  a  like  conclusion: 
Morse  on  Banks,  sect.  550. 

^McKenzie  ?•.  Downing,  25  Geo.  6f)9.  Xothing  is  said  about  the  right  to  re- 
cover the  amount  named  in  the  check  if  it  had  been  delivered. 


302  Gifts. 

"A  check,"  said  Romilly,  M.  R.,  "  is  nothing  more  than 
an  order  to  obtain  a  certain  sum  of  money,  and  it  makes 
no  difference  whether  the  money  is  at  a  banker's  or  any- 
where else.  It  is  an  order  to  deliver  the  money  ;  and  if 
the  order  is  not  acted  upon  in  the  lifetime  of  the  person 
who  gives  it,  it  is  worth  nothing.  The  testatrix  gave  the 
check  at  night,  and  she  died  in  the  course  of  the  same 
night  before  it  could  be  presented.  Suppose  she  had 
said,  *  I  have  got  £600  in  my  desk ;  bring  it  to  me,  and  I 
will  give  you  the  money,'  and  had  died  before  it  was 
brought  to  her,  that  would  have  been  no  gift :  and  the 
gift  of  a  check  is  the  same  thing ;  it  is  worth  nothing 
until  acted  upon,  and  the  authority  to  act  upon  it  is  with- 
drawn by  the  donor's  death."  ^  There  are  a  number  of 
cases  to  the  same  effect."  Nor  does  the  fact  that  the 
donor  delivers  his  banker's  pass-book  with  the  check 
render  the  gift  valid.^  So,  where  the  donor  had  taken 
out  a  certificate  of  deposit,  "  payable  to  the  order  of  him- 
self on  the  return  of  "  the  "  certificate  properly  indorsed," 
and  he  gave  a  check  to  the  donee  running,  "  Pay  to  the 
order  of  R.  K.  Smither  [the  donee]  the  amount  of  my 
deposit,  and  charge  to  my  account,"  it  was  held  that 
there  was  not  a  valid  gift  mortis  causa,  the  check 
not  having  been  presented  during  the  lifetime  of 
the  donor."^  Nor  can  it  be  claimed  that  the  giv- 
ing of  a  check  works  an  assignment  of  the  fund 
before  it  is  accepted  by  the  bank  or  drawee,  so  as  to 
render  the  latter  liable.^     If  a  check  payable  on  presen- 

'  Hewitt  r.  Kare,  6  L.  R.  Eq.  198 ;  S.  C.  37  L.  J.  Ch.  633 ;  16  W.  R.  835.  If 
presented  before  the  donor's  death  and  accepted  or  paid  it  wouhl  have  been  good. 

■-  Harris  v.  Clark,  3  N.  Y.  93;  S.  C.  51  Am.  Dec.  352;  Drewe-Mercer  v.  Drewe- 
Mercer,  6  T.  L.  E.  95. 

3  Beak  v.  Beak,  13  L.  E.  Eq.  489 ;  S.  C.  4  L.  J.  Ch.  470 ;  26  L.  T.  281. 

*  Smither  v.  Smither,  30  Hun,  632. 

^Second  Nat.  Bank  D.Williams,  13  Mich.  282. 


Bank  Checks  and  Deposits.  303 

tation  is  not  a  good  donatio  tnortis  causa,  miicli  less  so  is 
one  payable  in  the  future  where  the  donor  dies  before  it 
is  payable;^  nor  is  a  check  delivered  to  a  third  person  as 
trustee  of  the  donee,  payable,  by  its  express  terms,  a  cer- 
tain length  of  time  after  the  death  of  the  donor.^  A  donor 
held  a  banker's  deposit  note  for  £2,700.  In  his  last  sick- 
ness, two  days  before  his  death,  he  expressed  a  desire  to 
give  his  wife  £500  of  the  £2,700 ;  and  at  his  request  a 
friend  filled  up  a  seven  days'  notice  to  the  bank  to  with- 
draw the  deposit,  and  the  donor  signed  it.  Afterward  the 
donor  signed  a  form  of  check,  which  was  on  the  back  of 
the  note,  "  Pay  self  or  bearer  £500,"  and  gave  the  note  to 
his  wife.  Before  the  expiration  of  the  seven  days  the 
donor  died.  When  a  customer  withdrew  part  of  a  sum 
which  he  had  placed  on  deposit,  the  practice  of  the  bank 
was  to  give  him  a  fresh  note  for  the  balance.  In  an  action 
against  the  executors  of  the  donor  brought  by  the  wife  to 
recover  the  £500,  it  was  decided  that  there  was  no  valid 
gift  mortis  causa ;  while  it  was  admitted  that  a  banker's 
deposit  note  was  the  subject  of  such  a  gift,  yet  the  giving 
of  the  check,  which  was  2')ayable  only  at  the  end  of  the 
seven  days'  notice,  taken  in  connection  with  the  custom  of 
the  bank,  did  not  make  the  note  or  any  part  of  it  the  sub- 
ject of  a  gift,  for  such  was  not  the  intention  of  the  donor. 
The  delivery  of  the  note  was  not  made  with  the  intention 
of  giving  either  it  or  the  money  to  the  wife.  "  The  inten- 
tion was  to  deliver  the  cheque,  and,  according  to  the 
authorities,  that  is  not  a  good  donatio  mortis  causal  ^  So 
where  the  donor  gave  his  check  to  an  agent  with  direc- 
tions to  deliver  it  to  the  donee  after  the  donor's  death  from 

>  Cnrrv  v.  Powers,  70  X.  Y.  212  ;  S.  C.  2G  Am.  Eep.  577. 

2  Wavnesbnrg  Colle<ie,  Appeal  of,  111  Pa.  St.  130;  S.  C.  32  Pitts.  L.  Jr.  437. 

^  Austin  V.  Mead,  15  Ch.  Div.  Gol  ;  S.  C.  50  L.  J.  Ch.  30  ;  43  L.  T.  117  ;  28  W. 
R.  891.  See  Duffinr.  Diiffin,  44  Ch.  Div.  76  ;  S.  C.  59  L.  J.  Ch.  420;  62  L.  T. 
614;  38  W.  R.  369  ;  6  T.  L.  R.  204. 


304  Gifts. 

his  present  sickness,  but  if  lie  should  recover  then  to  re- 
turn it,  it  was  held  to  be  an  incomplete  gift,  even  though 
the  donor  died.^  An  early  case  in  England  has  been  the 
subject  of  much  discussion.  A  husband  gave  his  wife, 
while  on  his  death-bed,  £100  in  gold,  in  hand  delivered, 
and  drew  a  bill  on  his  goldsmith  to  pay  his  wife  another 
£100, /or  mourning  and  to  maintain  her  until  her  life- 
rent (meaning  her  jointure)  should  become  due.  Seven- 
teen days  thereafter  he  died.  The  gift  of  the  bill  was  held 
good,  although  not  paid  until  after  the  donor's  death,  upon 
the  ground  that  it  operated  as  an  apjDointment,  being  a 
direction  to  his  testators  to  pay  it  to  the  use  of  his  wife, 
and  being  for  mourning  chiefly  it  might  operate  like  a 
direction  given  by  the  testator  touching  his  funeral,  which 
ought  to  be  observed,  though  not  in  the  will.^  This  case 
has  been  frequently  distinguished,  and  is  said  to  be  ob- 
scurely reported,  because  of  its  special  circumstances  ;  and 
in  the  light  of  modern  cases  it  cannot  be  supported 
upon  any  other  ground.  The  bill  on  the  goldsmith 
was  nothing  more  than  the  modern  check  on  a  bank ; 
for  then  (1718)  the  goldsmiths  were  the  bankers  of 
England.'^ 

320.  Check  of  Stranger  the  Subject  of  a  Gift 
Mortis  Causa. — While  the  donor  cannot  make  a  valid 
gift  mortis  causa  of  his  own  check  yet  he  may  of  an  unin- 
dorsed check  25ayable  to  himself  and  drawn  by  a  stranger, 
just  as  he  may  a  note  jDayable  to  himself.  Of  course  the 
same  is  true  of  a  gift  inter  vivos} 

I  Walter  v.  Ford,  74  Mo.  195. 

^  Lawson  v.  Lawson,  1  P.  Wms.  441. 

^See  the  comments  on  the  case  in  Tate  v.  Hilhert,  2  Ves.  Jr.  Ill  ;  and  in  Har- 
ris r.  Clark,  3  N.  Y.  93  ;  S.  C.  51  Am.  Dec.  352. 

*  Clement  v.  Cheesman,  27  L.  R.  Ch.  Div.  631 ;  S.  C.  54  L,  J.  Ch.  Div.  158 ;  33 
W.  R.  40 ;  McGlade's  Appeal,  99  Pa.  St.  338. 


Bank  Checks  and  Dej^osits.  305 

321.  No  Intention  to  Give  Proceeds  of  a  Check. 
— In  order  to  make  the  proceeds  of  a  check  a  valid  gift, 
although  the  amount  named  therein  may  he  reduced  to 
actual  possession  by  the  alleged  donee,  there  must  he  an 
actual  intent  to  give  that  amount.  Thus  where  a  T\'ife 
held  a  legacy  to  her  separate  use,  and  received  an  un- 
crossed country  banker's  draft,  payable  in  London,  for 
the  amount,  less  the  legacy  duty,  and  she  indorsed  the 
draft  and  handed  it  over  to  her  husband,  and  his  banker 
received  the  amount  and  j)laced  it  by  his  directions  to  his 
deposit  account ;  and  the  wife  dei^osed  that  she  never  in- 
tended to  make  a  gift  of  the  draft  to  her  husband,  but 
that  her  husband  declined  to  have  the  money  settled 
upon  himself,  although  he  made  no  objection  when  she 
said  that  "  she  would  like  to  be  able  to  will  it  away,"  it 
was  held  that  there  was  no  gift  of  tlie  money  by  her  to 
her  husband,  and  that  she,  after  his  death,  was  entitled  to 
it.i 

322.  Donor's  Check  Exchanged  for  a  Stranger's 
Check. — On  his  death-bed  the  donor  gave  his  wife  a 
check,  saying  "  she  would  want  money  before  his  affairs 
were  wound  up,  and  that  the  gift  was  to  be  for  her  sole 
use,  besides  what  she  should  receive  from  his  estate." 
The  check  was  crossed,  and  for  that  reason  it  was  some 
days  after  the  delivery  exchanged  for  a  friend's  check  of 
the  same  amount,  in  favor  of  the  wife.  The  donor  stated 
to  this  friend  that  he  desired  to  give  his  (the  friend's) 
check  to  her,  and  she  received  and  kejDt  it  until  her  hus- 
band's death.  Before  the  donor's  death  his  check  was 
paid  by  the  bank,  but  the  friend's  check,  which  was  post- 
dated and  also  crossed,  was  exchanged  for  another,  and 
was  duly  paid  after  the  donor's  death.     It  was  contended 

1  Green  v.  Carlill,  4  Oh.  Div.  8S2  ;  S.  C.  46  L.  J.  Ch.  477. 
20 


306  Gifts. 

that  there  was  no  valid  gift,  but  the  court  decided  that 
there  was,  and  that  the  money  given  formed  no  part  of 
the  donor's  estate.  The  gift  was  deemed  a  gift  mortis 
causa} 

Bank  Deposits. 

323.  Certificate  of  Deposit — Delivery. — A  cer- 
tificate of  deposit  imyable  to  tlie  order  of  the  depositor 
or  to  the  bearer^  is  the  subject  of  a  gift,  either  inter  vivos 
or  7nortis  causa.  It  is  nothing  more  than  the  obligation 
of  the  bank  to  pay  the  sum  of  money  named  therein  on 
presentation  of  the  certificate  properly  indorsed,  when 
payable  to  the  order  of  the  depositor,  or  to  bearer  when 
so  payable.  Indeed,  it  is  nothing  more  than  the  note  or 
bond  of  the  bank  for  the  payment  of  a  sum  of  money  on 
demand  ;  and  whether  indorsed  or  not  by  the  depositor  it 
is  capable,  in  equity,  of  being  enforced  as  a  gift,  like  any 
chose  in  action,  where  there  has  been  a  complete  gift  of 
the  certificate.  The  gift  may  even  be  of  a  part  of  a  certifi- 
cate, if  there  is  a  sufficient  delivery.  But  where  A  and  B, 
two  brothers,  had  been  engaged  in  business,  and  A,  dur- 
ing his  last  illness,  sent  for  his  counsel  to  draw  his  will ; 
and  upon  its  execution  produced  a  certificate  of  deposit, 
saying  that  he  had  never  settled  with  his  brother  in  their 
business  relations,  and  expressing  a  desire  to  assign  him 
a  part  of  the  deposit ;  and  thereupon,  at  his  request,  his 
counsel  wrote  out  an  assignment,  on  the  back  thereof,  of 
the  certificate,  which  he  signed  and  handed  it  back,  accom- 
panied with  the  remark  that  "  he  should  take  it  with  him 
and  put  it  in  his  safe ;  and  that  it  was  for  B ;"  and  his 
counsel  took  and  locked  it  up  in  his  [the  counsel's]  safe 
as  requested,  and  retained  it  until  after  A's  death,  which 

1  Bonts  V.  Ellis,  17  Beav.  121 ;  affirmed  4  De  G.,  M.  &  G.  249  ;  S.   C.  17  Jur. 
585. 
=>  Brooks  V.  Brooks,  12  S.  C.  422. 


Bank  Checks  and  Deposits.  307 

took  place  several  months  later ;  it  was  held  that  the  gift 
was  incomplete  for  want  of  a  delivery  to  the  donee,  or  to 
some  one  for  his  use.  The  person  to  whose  hands  it  was 
intrusted  was  only  the  agent  of  the  donor,  and  he  had  no 
instructions  to  deliver  it  to  the  donee.  The  gift  was  also 
incomplete  for  want  of  an  acceptance  by  the  donee  dur- 
ing the  life  of  the  donor.  Therefore,  in  an  action  against 
the  estate  for  the  amount  assigned  the  defendant  had  the 
judgment.^  But  where  the  donor  delivered  to  the  donee, 
three  hours  before  his  death,  a  deposit  note,  and  the  do- 
nee took  and  kept  it,  it  was  held  to  be  a  valid  gift  mortis 
causa.^  If,  however,  the  certificate  of  deposit  is  so  in- 
dorsed as  to  limit  and  restrain  the  authority  of  the  donee 
in  the  collection  of  the  money,  so  as  to  forbid  its  payment 
until  the  donor's  death,  it  is  not  valid  as  a  donatio  mortis 


'  Scott  V.  Laumnn,  104  Pa.  St.  593. 

^Aniis  V.  Witt,  33  Beav.  G19  ;  but  notliing  is  said  in  the  opinion  concern- 
ing the  note,  aUusion  being  made  only  to  a  policy  of  insurance  given  at  the  same 
time,  and  held  to  be  a  valid  gift:  101  E.  C.  L.  (1  B.  &  S.)  109.  If  the  donee 
draw  at  once  the  money  on  the  deposit  note  he  will  have  to  return  it  if  the  do- 
nor recovers:  Moore  v.  Moore,  IS  L.  R.  Eq.  474;  S,  C.  43  L.  J.  Ch.  617  ;  22  W. 
E.  729 ;  30  L.  T.  N.  S.  752.  See  Dunne  v.  Boyd,  8  Ir.  Eq.  Rep.  609,  where  it  was 
assumed  that  a  deposit  note  could  be  the  subject  of  a  valid  gift  mortis  caum  :  Con- 
ner V.  Root,  11  Colo.  183  (note  unindorsed,  but  a  valid  gift) ;  McCabe's  Cnse,  6  Pa. 
C.  C.  42 ;  Vl^esterlo  v.  De  Witt,  36  N.  Y.  341  ;  S.  C.  93  Am.  Dec  517 ;  Harris  v. 
Clark,  3  N.  Y.  93;  S.  C.  51  Am.  Dec.  352.  Coiitra,  McCabe  v.  Robertson,  IS  C.  P. 
U.  C.  471 ;  Lee  v.  Bank,  30  C  P.  U.  C.  255  ;  Fx  parte  Gerow,  10  N.  B.  512 ;  Moore 
V.  Ulster  Bank,  11  Ir.  C.  L.  512  (1877) ;  Hunter  r.  Wallace,  14  U.  C.  Q.  B.  205; 
S.  C.  13  U.  C.  Q.  B.  385. 

3  Basket  v.  Hassell,  107  U.  S.  602;  S.  C.  affirming  6  Repr.  609;  8  Biss.  303. 
Same  case  on  second  appeal,  108  U.  S.  267  ;  M'Xicol  v.  M'Dougal,  17  C.  of  S.  Cas. 
25;  Morrison  v.  Forbes,  17  C.  of  S.  Cas.  958.  A  deposit  receipt,  in  the  ordinary 
form,  may  be  the  subject  of  a  donatio  mortis  causa,  although  the  receipt  is  expres-ed 
not  to  be  transferable :  Cassidy  v.  Belfast  Banking  Company,  22  L.  R.  Ir.  68. 

A,  in  his  last  sickness,  showed  a  deposit  note  to  his  daughter,  and  told  her  that 
it  belonged  to  her  if  he  died.  She  took  it.  and,  by  his  directions,  placed  it  for 
safe  custody  in  a  cash-box  which  was  kept  in  his  bed-room,  but  of  which  she  had 
the  key,  and  to  which  slie  resorted  for  household  purposes.  It  was  i>eld  that  tins 
was  a  good  donatio  mortis  causa:  Taylor  i'.  Taylor,  56  L.  J.  Ch.  597.    See  larman 


308  Gifts, 

324.  Money  Deposited  ix  Name  of  Donee. — Many 
cases  have  arisen  where  the  owner  of  money  has  deposited 
money  in  bank  to  the  credit  of  a  third  person.  Such  a 
deposit  may  or  may  not  be  a  gift,  according  to  the  cir- 
cumstances of  each  particular  case.  Thus  where  the 
donor,  in  the  presence  of  the  donee,  his  daughter,  de- 
posited money  in  a  bank  for  the  latter's  personal  and 
sj)ecific  use,  in  her  name,  and  afterward  made  like  de- 
posits in  a  trust  company  in  her  name,  though  not  in  her 
presence  ;  and  then  several  dej^osits  in  such  company 
were  entered  in  a  jDass-book  supplied  by  the  company, 
which  he  delivered  to  her  ;  and  she  drew  out  the  amount 
deposited  in  the  bank  and  placed  it  to  her  credit  in  the 
trust  company,  thus  forming  part  of  the  whole  amount 
to  her  credit  therein,  it  was  held  that  there  was  not  only 
a  j)erfect  gift  of  the  funds  in  the  bank,  but  also  of  those 
in  the  trust  company.  "  There  was  nothing  more,"  said 
the  court,  "  that  could  have  been  done  in  order  to  clothe 
the  donee  with  the  absolute  and  full  title  and  control  of 
the  moneys  thus  deposited,  and  nothing  more  was  neces- 
sary to  complete  a  valid  and  irrevocable  gift."  ^ 

325.  Same  Continued — Revocation — Estoppel. — 
A  donor  made  a  deposit  in  the  name  of  the  donee,  a 
minor,  naming  her  mother  as  guardian.  At  the  same 
time  she  informed  the  guardian  that  she  had  put  the 
money  in  the  bank  for  the  donee.  A  bank-book  Avas  de- 
livered to  the  donor  by  the  bank  with  the  deposit  so  en- 
tered upon  it,  but  she  retained  j^ossession  of  it,  and  after- 
ward had  the  money  transferred  back  to  her  by  the 
guardian.     This  was  held  to  be  a  valid  gift,  and  irrevo- 

V.  Smitl),  57  L.  J.  Ch.  637;  S.  C.  58  L.  T.  12;  Duffin  v.  DufRn,  44  Ch.  Div.  76; 
S.  C.  59  L.  J.  Ch.  420;  62  L.  T.  614  ;  38  W.  K.  369  ;  6  T.  L.  R.  204  (check  given 
along  with  deposit  note,  lield  not  to  vitiate  gift). 

'  Crawford,  Matter  of,  113  N.  Y.  560 ;  Beaver  v.  Beaver,  32  N.  E.  Rep.  998. 


Bank  Checks  and  Deposits.  309 

cable.^  So  in  the  same  State  A  deposited  in  a  savings 
bank  $250  in  her  own  name  as  trustee  for  W,  who  was  a 
boy  only  thirteen  years  of  age.  His  parents  were  near 
neighbors  and  friends  of  A,  and  he  was  accustomed  to  do 
errands  for  her,  being  ahnost  daily  at  her  house  for  that 
purpose.  She  often  gave  him  presents  in  return  for  his 
services.  Shortly  after  making  the  deposit  she  told  the 
boy's  parents  she  had  deposited  that  amount  in  the  book, 
for  W,  and  again  alluding  to  it  said  he  would  need  it  for 
his  education.  She  kept  the  book,  and  two  years  after 
drew  out  a  part  of  the  money,  and  a  year  later  the  re- 
mainder with  accrued  interest,  signing  receipts  in  her 
own  name,  and  appropriating  the  money  to  her  own  use. 
Six  years  after  the  deposit  she  died,  leaving  a  will  in 
wdiich  no  allusion  was  made  to  the  deposit,  nor  to  W. 
In  a  contest  over  this  sum  it  was  decided  that  a  valid 
gift  had  been  made,  a  trust  created  at  the  time  of  the  de- 
posit, not  revocable ;  and  that  the  title  to  the  money 
vested  in  W  at  his  majority,  if  not  sooner  (when  he 
needed  it  for  his  education)  ;  and  it  was  intimated  that 
the  title  vested  in  him  when  A  drew  it  out  of  the  bank.^ 
During  his  lifetime  a  father  deposited  money  in  a  savings 
institution  to  the  credit  and  in  the  name  of  his  son.  He 
had  been  accustomed  to  stop  with  B ;  and  about  two 
weeks  before  his  death,  then  being  seventy-three  years 
of  age,  as  he  was  leaving  B's  house  he  complained  of  his 
health  and  said  he  could  not  live  long.  He  further  said, 
on  leaving  with  B  the  box  containing  the  bank-book, 
that  he  intended  that  for  his  son  and  that  B  must  let  no 
other  person  have  it,  "except  there  was  five  dollars  for  S." 
To  another  witness  he  said  that  he  had  money  in  bank 
for  his  son,  and  the  reason  why  he  had  done  so  was  because 

^  Kerrigan  v.  Rautigan,  43  Conn.  17. 
'  Minor  V.  Rogers,  40  Conn.  512. 


310  Gifts. 

he  had  given  a  farm  to  M,  and  W  did  not  like  the  donee ; 
that  he  had  done  this  for  the  rest  of  his  chiklren,  and 
never  had  done  anything  for  the  donee.  The  key  to  the 
trunk  which  contained  the  bank-book  was  found  in  the 
pocket-book  of  the  donor  after  his  death.  In  an  action 
by  the  son  to  recover  tlie  funds  drawn  from  the  savings 
institution  by  the  administrator  of  the  father,  it  was  held 
that  the  gift  was  a  valid  gift  mortis  causa}  A  husband 
deposited  his  own  money  in  a  bank  to  the  credit  of  his  wife, 
saying  to  the  cashier  that  the  money  was  his,  and  that  he 
would  let  the  amount  rest  in  that  way  for  a  short  time. 
The  wife  was  sick  and  the  deposit  was  made  to  please 
and  appease  her.  She  drew  checks  upon  this  acccount, 
which  were  paid.  The  wife  dying,  the  cashier  agreed 
that  the  husband  should  draw  out  the  remainder.  He 
did  so,  but  it  was  held  that  the  cashier  could  make  no 
such  an  agreement  that  would  estop  a  receiver  of  the 
bank  from  insisting  that  the  money  belonged  to  his 
wife's  administrators.  It  was  decided  that  there  was  a 
valid  gift.^ 

326.  Acceptance  of  Deposit — Donee  Having  No 
Knowledge  of  it — Donor  Retaining  Control  Over 
Deposit. — In  the  foreo-oins:  cases  the  donee  had  knowl- 
edge  of  and  had  expressly  or  tacitly  accepted  the  deposit 
as  a  gift.  Acceptance  of  the  benefit  of  the  deposit  is 
essential  to  make  a  gift  complete.  Thus  where  a  husband 
deposited  money  in  his  wife's  name  in  a  bank,  and  it  was 
so  charged  upon  the  books  of  the  bank  and  upon  a  pass- 
book given  to  him,  Init  there  was  no  evidence  that  she  had 
any  knowledge  of  the  deposit  until  after  her  husband  had 
drawn  it  out,  it  was  decided  that  she  could  not  recover  the 

^Vandermark  v.  Vandermark,  55  How.  Pr.  408. 
2  The  People  v.  State  Bank,  36  Hun,  607. 


Bank  Checks  and  Deposits.  311 

amount  of  the  deposit  from  the  bank.  ''  A  mere  deposit," 
said  the  court,  "of  the  property  by  the  depositor,  in  the 
name  of  another,  with  a  third  person,  will  not  of  itself  be 
sufficient  to  pass  the  title.  The  act  is  one  entirely  be- 
tween the  depositor  and  the  bailee,  to  which  the  j^erson  in 
whose  name  the  deposit  is  made  is  in  no  way  a  party.  It 
would,  of  itself ,  no  more  pass  title  than  would  the  execu- 
tion of  a  deed  by  a  person,  and  the  2^1acing  it  on  record 
by  him,  without  the  knowledge  or  consent,  express  or  im- 
plied, of  the  person  named  as  grantee."  ^  It  will  be  ob- 
served that  in  this  case  the  depositor  never  lost  dominion 
over  the  fund,  but  the  court  does  not  seem  to  place  special 
emj^hasis  upon  this  fact.  In  New  York,  however,  this 
was  regarded  as  a  turning  point  in  the  case.  There  a 
father  caused  the  bank  to  open  an  account  with  his  young 
children,  and  transferred  various  amounts  to  it.  After 
the  transfer  had  been  made,  the  father  continued  to  ex- 
ercise control  over  the  several  accounts,  and  the  bank 
recognized  him  in  that  connection.  It  did  not  appear 
that  the  father  was  indebted  to  the  children,  or  that  he 
had  ever  received  any  consideration  for  the  transfer  of  the 
credits,  or  that  the  children  had  notice  thereof.  In  an 
action  by  the  father  against  the  bank  for  the  amount  of 
these  several  accounts,  especial  emphasis  was  laid  upon 
the  fact  that  he  had  never  parted  with  his  dominion 
and  control  over  the  funds,  which  was  essential  to  a  per- 
fect gift,  which  control  the  bank  could  not  dispute  after 
so  long  recognizing  it.  Nothing  of  moment  was  said 
about  the  children  having  accepted  the  gift ;  for,  possibly, 
the  law  would  presume  an  acceptance  by  them,  if  that 
were  the  only  thing  lacking  to  complete  the  gift.'     But 

1  Brnnch  r.  Dawson,  ?>(S  Minn.  193.    See.  also,  Gaskell  v.  Gaskell,  2  Y.  &  J.  501, 
and  Tayl  r  v.  Henry  48  Mrl  550 ;  S.  C.  oO  Am.  Rep.  486. 
*  Geary  v.  Page,  9  Bosw.  290. 


312  Gifts, 

where  a  donor  deposited  money  in  a  savings  bank  (and 
this  bank  deposit  seems  to  have  been  nothing  more  than 
a  deposit  in  an  ordinary  bank  of  deposit)  in  trust  in 
the  name  of  the  donee,  taking  out  a  pass-book  in  the 
donee's  name,  and  after  the  death  of  both  the  donor  and 
donee  it  not  a23pearing  that  either  the  donor  made  any 
claim  to  the  fund  or  that  the  donee  ever  knew  of  it,  in  an 
action  between  the  executors  of  the  donor  and  that  of  the 
donee,  the  fund  was  awarded  to  the  latter,  upon  the 
theory  that  there  was  a  valid  gift.^ 

327.  Gift  of  Bank-Book  Does  Not  Pass  the  De- 
posit.— A  bank-book,  in  which  is  noted  the  various 
amounts  deposited  by  the  holder  of  it,  is  nothing  more 
than  evidence  of  the  fact  and  amount  due  from  the  bank 
to  the  depositor.  It  does  not  contain  and  is  not  the  con- 
tract between  the  bank  and  the  depositor.  It  is  in  no 
wa}''  a  deposit  note.  Therefore  the  gift  of  his  deposit- 
book  by  the  donor,  even  of  a  savings  bank,  where  it  is  simi- 
lar to  the  pass-book  of  an  ordinary  depositing  book,  does 
not  make  a  valid  gift  of  the  money  deposited  in  the  bank 
and  of  which  the  pass-book  may  serve  as  evidence  of  the 
debt  due  to  the  depositor." 

328.  Wife  Betainixg  Aftee  Marriage  Money  She 
Had  ox  Deposit — Husband  as  Trustee. — One  White- 
head married  a  Miss  Milner,  Avho  owned  real  estate  and 
had  £1,400  in  bank.  Previous  to  the  marriage  Mr. 
Whitehead  regarded  the  possession  of  Miss  Milner  a  suffi- 
cient fortune  for  this  world,  and  very  generously  agreed 

^  Millspaiigh  V.  Piitnan,  16  Abb.  Pr.  380.  It  does  not  appear  from  the  report 
how  long  before  the  death  of  either  the  donor  or  donee  the  gift  had  been 
made. 

2  M'Gonnell  v.  Murray,  3  Ir.  Eq.  Rep.  460  ;  Ashbrook  v.  Ryon,  2  Bush.  228  ; 
Thomas  v.  Lewis,  15  S.  E.  Rep.  389. 


Bank  Checks  and  Deposits.  313 

with  her,  before  the  bonds  of  matrimony  had  mohied  them 
into  one  legal  individual,  in  accordance  with  the  pro- 
visions of  the  common  law  which  we  have  always  been  ab- 
surdly taught  by  the  old  legal  luminaries  to  admire  as  the 
pinnacle  of  legal  wisdom,  that  she  should  hold  after  the 
marriage,  her  real  estate  and  money  then  possessed  by  her 
as  her  separate  estate.  The  real  estate  was  so  settled ;  but 
nothing  was  done  with  the  £1,400,  except  to  leave  it  in 
the  bank  where  she  as  a  maiden  had  deposited  it.  The 
bank  took  no  notice  of  Iicr  marriage  ;  and  so  far  as  it  was 
concerned,  she  was  still  a  maiden,  for  they  let  her  take 
out  £50,  and  with  the  knowledge  and  consent  of  her  hus- 
band she  drew  the  interest  due  upon  the  deposit  for  two 
years.  But  the  course  of  matrimony  did  not  run  smoothly 
with  Mr.  and  Mrs.  Whitehead,  and  they  "agreed  to  dis- 
agree," sealed  a  verdict  to  that  effect  and  separated.  Then 
it  was  that  Mr.  AVhitehead  thought  of  the  £1,350  in  bank, 
and  called  upon  his  solicitor  to  know  "  his  rights."  That 
legal  luminary  was  so  hard-hearted  as  to  at  once  inform 
him  that  when  a  man  and  woman  marries,  all  her  per- 
sonal pro^^erty,  in  accordance  with  the  much  revered  com- 
mon law,  became  his  ;  and  seizing  his  cane  and  hat,  he 
quickly  reached  the  bank  and  served  notice  upon  them 
not  to  let  Mrs.  Whitehead  have  the  £1,350.  But  Mrs. 
AVhitehead  had  apparently  not  consulted  an  attorney,  and 
had  gone,  in  accordance  with  her  feminine  ])romptings 
and  instincts  of  justice,  and  drew  out  the  £1,350  before  the 
legal  luminary  reached  the  bank ;  and  so  the  latter  was 
informed,  much  to  his  chagrin,  that  such  was  the  ease 
when  he  served  the  aforesaid  notice.  Apparently  Mr. 
Whitehead  could  not  get  along  without  the  rent  of  his 
wife's  estate  and  the  interest  of  her  money  ;  for  in  twenty 
months  he  made  an  assignment  of  his  property  to  pay  his 
creditors,  and  his  hard-headed  trustee  sought  to  recover 


314  Gifts. 

the  £1,350.  In  vain  was  it  urged  before  stern  Justice 
Cave  that  the  husband  had  agreed  that  this  money  should 
be  hers  and  not  his ;  but  the  statute  of  frauds  served  the 
husband,  and  the  trustee  for  the  moment  got  the  money. 
But  when  all  things  else  fail,  an  appeal  to  a  higher  court 
was  left ;  and  so  appealed  Mrs.  Whitehead.  And  here  she 
won ;  for  the  court  said  the  statute  of  frauds  had  noth- 
ing to  do  with  the  case,  and  that  it  was  very  clear  after 
the  marriage  Mr.  Whitehead  had  given  the  £1,400  to  his 
wife  for  her  separate  use,  and  that  he  had  made  himself  a 
trustee  of  it  for  her.  Thus  it  was  that  Mr.  Whitehead  had 
made  a  gift  to  his  wife  but  didn't  believe  it.^  But  in  Penn- 
sylvania a  poor  woman  in  a  somewhat  similar  case  lost  her 
earnings,  although  deposited  in  a  savings  bank  in  her  own 
name.^ 

Savings  Bank  Deposits. 

329.  Deposit  in  Savings  Bank  in  Donee's  Name — 
Gift  Inter  Vivos — Presumption  of  Acceptance. — The 
subject  of  gifts  of  deposits  in  savings  banks  has  been  one 
calling  for  many  decisions.  More  cases  have  arisen  with 
respect  to  such  gifts  than  with  respect  to  deposits  in  ordi- 
nary banks  of  deposits.  As  will  hereafter  be  seen,  some 
of  these  cases  rest  upon  the  same  ground  that  cases  with 
respect  to  ordinary  deposits  do,  while  others  turn  upon 
the  statute  law  peculiarly  applicable  to  savings  banks, 
or  upon  by-laws  adopted  by  the  particular  bank  in  ques- 
tion. Illustrations  of  these  will  be  given  in  the  following 
pages.  A  strong  case  of  this  kind  occurred  in  Vermont. 
There  A  deposited  $220  of  her  own  money  in  a  savings 
bank,  in  the  name  of  B,  and  took  out  a  deposit-book, 

1  Ejc  parte  Whitehead,  14  L.  E.  Q.  B.  Div.  419 ;  S.  C.  54  L.  J.  Q.  B.  Div.  240 ; 
52  L.  T.  (N.  S.)  597  ;  33  W.  E.  471  ;  49  J.  P.  405 ;  reversing  54  L.  J.  Q  B.  Div. 
8S  ;  S.  C.  52  L.  T.  (N.  S.)  265  ;  33  W.  E.  230. 

^  McDermott's  Appeal,  106  Pa.  St.  358. 


Bank  Checks  and  Deposits.  315 

in  which  was  entered,  by  the  treasurer  of  the  bank,  the 
following  memorandum :  "  1864,  Xo.  530,  B  deposited 
$220."  At  the  time  of  the  deposit,  the  treasurer  entered 
in  the  bank-books  this  memorandum  in  the  identical  lan- 
guage used  in  the  deposit-book,  pursuant  to  the  by-laws 
of  the  institution.  A  retained  the  bank-book  until  her 
death,  which  occurred  several  months  after  B's.  It  did 
not  appear  that  B  ever  knew  of  the  deposit.  A  by-law 
of  the  bank  provided  that  deposits  should  be  entered  in 
the  treasurer's  books  and  duplicates  given  to  each  depos- 
itor ;  and  by  the  act  of  depositing  the  depositor  was  to  be 
taken  and  deemed  as  assentins;  to  the  bindino-  effect  of  all 
by-laws  and  regulations  of  the  bank.  Another  by-law 
provided  that  "  any  depositor  may  designate,  at  the  time 
of  making  his  deposit,  the  period  for  which  the  same  shall 
remain  in  the  institution  and  the  person  for  whose  benefit 
the  same  is  made ;  and  such  depositor,  and  his  or  her 
legal  representative,  shall  be  bound  by  such  condition  by 
him  or  her  voluntarily  annexed  to  such  deposit,  and  in 
case  of  the  dissolution  of  the  corporation  the  same  shall 
be  paid  to  such  person  as  may  be  legally  entitled  thereto." 
But  the  court  deemed  that  these  provisions  had  nothing 
to  do  with  the  case  for  the  reason  that  both  the  depositor 
and  the  bank  treated  the  money  as  belonging  to  B. 
It  also  held  that  the  money  deposited  belonged  to  B,  that 
the  bank  had  a  right  to  so  regard  it,  and  that  the  trans- 
action amounted  to  an  agreement  between  the  bank  and 
B,  b}^  force  of  which  it  became  accountable  to  B  and  to 
no  other  person ;  that  B  thereby  became  bound  by  the 
by-laws,  and  A  had  no  power  to  withdraw  the  deposit. 
The  article  quoted  was  deemed  to  apply  only  to  a  person 
depositing  money  in  his  own  name  for  the  benefit  of  some 
third  person ;  in  which  event  the  depositor  would  be 
bound  by  the  condition  annexed  to  the  dejiosit.    Another 


316  Gifts. 

article  of  tlie  by-laws  required  that,  when  any  jDerson 
should  receive  either  the  principal  or  interest,  he  should 
jDroduce  his  original  deposit-book  and  have  entered  therein 
the  fact  of  the  payment,  except  in  case  of  sickness  or  ab- 
sence, when  it  could  be  paid  upon  his  written  order  accom- 
panied by  the  book.  Still  another  article  recited  that, 
"  as  the  officers  of  this  bank  may  be  unable  to  identify 
every  depositor  transacting  business  at  the  office,  the  in- 
stitution will  not  be  responsible  for  loss  sustained  when  a 
dejDOsitor  has  not  given  notice  of  his  book  being  lost  or 
stolen,  if  such  book  be  paid  in  whole  or  in  part  on  pres- 
entation." It  was  insisted  that  the  retention  of  the  book, 
which  was  evidence  of  the,  deposit,  by  A,  showed  that  the 
gift  was  never  perfected  ;  for  B  could  not  draw  the  money, 
not  being  able  to  produce  the  dej^osit-book.  But  the  court 
did  not  think  so,  for,  it  said,  the  entry  in  the  bank-books, 
which  was  a  du2)licate  of  that  in  the  deposit-book,  was  also 
evidence  of  the  deposit  of  as  high  order  as  that  of  the 
treasurer's  books ;  but  if  the  argument  were  sound,  then 
no  depositor  could  draw  out  his  deposit  if  he  had  lost  his 
deposit-book,  which  would  work  a  manifest  injury  to  de- 
positors so  situated.  But,  said  the  court,  the  mere  jdos- 
session  of  the  deposit-book  by  A  did  not  give  her  the 
right  to  draw  the  money,  and  that  very  book  showed  an 
ownership  in  B.  The  article  with  respect  to  the  deposit- 
book  gave  no  right  to  the  depositor  in  addition  to  those 
given  by  the  article  requiring  the  production  of  the  book 
or  a  written  order  of  the  depositor  ;  and  A  could  not  draw 
the  money  without  such  an  order  from  B.  The  article 
respecting  the  loss  of  the  book  was  for  the  protection  of 
the  bank  and  not  a  measure  in  favor  of  the  depositor. 
It  was  still  farther  claimed  that  there  was  no  evidence 
that  B  ever  knew  of  the  gift,  but  to  this  claim  the  court 
said  that  the  presumption  was  that  she  did  have  knowl- 


Bank  Checks  and  Deposits.  317 

edge  of  it;  and  the  fact  that  the  donor  lived  several 
months  after  the  donee's  death,  and  there  was  no  evidence 
to  show  that  the  former  ever  asserted  any  claim  to  the 
money  after  the  latter's  death,  tended,  said  the  court, 
to  prove  that  the  donor,  after  the  donee's  death,  regarded 
the  deposit  as  a  part  of  the  estate  of  the  donee.^ 

330.  Gift  of  Deposit-Book  of  a  Savings  Bank  is 
A  Gift  of  the  Fund. — We  have  already  seen  that  a  gift 
of  an  ordinary  pass  or  deposit-book  of  a  deposit  bank 
does  not  pass  the  title  to  the  fund  in  the  bank ;  for  the 
book  is  only  evidence  of  the  depositor's  title  to  the  fund 
and  not  the  fund  itself.  How  is  it  with  a  savings  bank 
deposit-book  ?  This  question  has  been  variously  answered. 
Thus  where  a  depositor  in  a  savings  bank  delivered  her 
deposit-book,  representing  deposits  in  the  bank,  to  a 
donee,  accompanied  by  proper  words  of  gift,  it  was  held 
that  there  was  a  valid  gift,  although  the  book  was  not  as- 
signed in  writing,  and,  by  the  rules  of  the  bank,  the  moneys 
could  only  be  drawn  or  transferred  by  the  depositor  or 
his  administrator,  or  by  some  person  presenting  the  book 
with  an  order  signed  by  the  depositor  in  the  presence  of 
attesting  witnesses."  The  donee  acquired  an  equitable  title 
to  the  fund."  Such  a  gift  may  be  valid  as  a  mortis  causa} 
Thus  where  the  donor,  four  days  before  her  death,  took  a 
key  from  her  bureau  drawer,  unlocked  her  trunk  and  took 
out  her  savings  bank-book,  and  said  to  the  donee  :  "  Now 
keep   this   and  if   anything   hajDpens   to   me,    bury    me 

1  Howard  v.  Windham  Co.  Savings  Bank,  40  Vt.  597. 

2  Hill  V.  Stevenson,  63  Me.  364;  S.  C.  18  Am.  Kep.  231;  Augusta  Savings 
Bank  v.  Fogg,  82  Me.  538;  Bourne  v.  Stevenson,  58  Me.  499  ;  Ridden  v.  Thrall, 
125  N.  Y.  572. 

3  Camp's  Appeal,  36  Conn.  88 ;  S.  C.  4  Amer.  Rep.  39. 

*  Tillinghast  I'.  Wheaton,  8  R.  I.  536;  S.  C  5  Am.  Rep.  621  ;  Curtis  r.  Portland 
Savings  Bank,  77  Me.  151 ;  S.  C.  52  Am.  Rep.  750;  Alsop  v.  Southold  Savings 
Bank,  21  N.  Y.  Supp.  300. 


318  Gifts. 

decently  and  put  a  headstone  over  me,  and  anything  that 
is  left  is  yours."  This  was  held  to  be  a  valid  donatio 
mortis  causa  of  the  funds.^  So  where  A,  on  going  away, 
with  no  expectation  of  returning,  gave  B  a  trunk  and 
what  was  in  it ;  and  he  went  away  but  returned  in  a  few 
days  and  occupied  the  room  he  had  before  his  departure, 
in  which  the  trunk  had  been  when  given  and  from  which 
it  had  never  been  removed ;  and  he  soon  died  in  that 
room,  the  trunk  never  having  been  removed  ;  and  in  the 
trunk  was  a  deposit-book  of  a  savings  bank  in  favor  of 
the  donor,  it  was  held  that  this  was  a  valid  gift  of  the 
bank-book  and  deposit  as  a  gift  inter  vivosr'  Speaking 
of  the  legal  effect  of  the  j^ossession  of  a  pass  or  deposit- 
book,  the  Sujireme  Court  of  Massachusetts  said  :  "  The 
book  is  the  instrument  by  which  alone  the  money  can  be 
obtained,  and  its  possession  is  thus  some  evidence  of  title 
in  the  person  presenting  it  at  the  bank.  It  is  in  the 
nature  of  a  security  for  the  payment  of  money,  it  dis- 
closes the  existence  and  amount  of  the  fund  to  the  person 
receiving  it,  and  affords  him  the  means  of  obtaining  pos- 
session of  the  same.  We  can  have  no  doubt  that  a  pur- 
chaser, to  whom  such  a  book  is  delivered  without  assign- 
ment, obtains  an  equitable  title  to  the  fund  it  represents  ; 
and  a  title  by  gift,  when  the  claims  of  creditors  do  not 
affect  its  validity,  stands  on  the  same  footing  as  a  title  by 
sale."  Consequently  it  was  held  that  the  bare  delivery 
of  a  deposit-book  of  a  savings  bank,  with  the  intention 
of  making  a  gift  of  the  deposit  fund  represented  by  it, 
even  without  an  assignment,  was  a  good  gift;  and  the 
donee  could  sue  in  the  name  of  the  donor's  administrator 
without  his  consent,  to  recover  the  fund.^     This  is  espe- 

^  Curtis  v.  Portland  Savings  Bank,  supra. 
^Penfield  r.  Thayer,  2E.  D.  Smith,  305. 
'  Pierce  v.  Boston  Five  Cents  Savings  Bank,  129  Mass.  425. 


Bank  Checks  and  De2)osits.  319 

cially  true  where  a  writeii  order  accompanies  the  delivery 
of  the  j)ass-book  for  the  payment  of  the  fund  ;  and  in 
such  a  case  it  was  held  that  the  declarations  of  the  donor, 
made  at  the  time  of  the  delivery,  tending  to  show  that  no 
gift  was  intended,  were  not  admissible  to  overthrow  the 
gift  or  to  contradict  the  effect  of  the  written  order  and  acts 
of  delivery,^  And  where  the  person  receiving  the  assign- 
ment, orally  agreed  that  he  would  draw  for  the  donor  what 
money  she  wanted  during  her  lifetime,  and  pay  whatever 
was  left  to  her  son  at  her  death,  it  was  decided  to  be  a 
valid  gift.^  So  where  A,  in  contemplation  of  death,  gave 
to  B  a  sealed  j)ackage,  informing  him  that  it  contained 
money  and  savings  bank-books,  instructing  him  Avhat  to 
do  with  the  property  at  his  death ;  and  after  A's  death  B 
opened  the  package  and  found  a  sum  of  money  in  it  and 
certain  savings  bank-books,  with  a  writing  signed  by  A, 
stating  where  he  wished  to  be  buried,  and  whatever  was 
left,  besides  paying  all  bills  and  expenses,  was  to  be  di- 
vided among  certain  persons  named,  it  was  held  that 
there  was  a  valid  gift  mortis  causa  to  B,  in  trust  for  the 
persons  named  in  the  2:)aper.^  But  where  A  gave  written 
directions  to  B,  who  had  charge  of  the  funds  standing  in 
A's  name  in  a  savings  bank,  to  draw  from  the  bank  a 
certain  sum  and  give  it  to  C ;  and  B,  after  the  paper  was 
presented  to  him,  declined  to  draw  the  money,  although 
afterward  verbally  requested  by  A  to  do  so ;  and  B,  on 
becoming  A's  executor,  again,  on  C's  request,  declined 
to  draw  the  money,  it  was  held  that  there  was  no  gift  and 
B  could  not  maintain  an  action  for  the  sum  intended  for 
him.     There  was  only  an  intent  to  make  a  gift,  not  a  gift 

1  Kimball  v.  Leland,  110  Mass.  325  ;  Foss  v.  Lowell,  etc.,  Bank,  111  Mass.  285; 
Sheedy  v.  Roach,  124  Mass.  472  ;  .S.  C.  26  Am.  Rep.  680. 

2  Davis  V.  Ney,  125  Mass.  590 

'  Pierce  v.  Boston  Five  Cents  Savings  Bank,  129  Mass  425. 


320  Gifts. 

perfected.^  So  In  Pennsylvania  where  a  rule  of  tlie 
savings  fund  society,  known  to  depositors,  provided  that 
no  transfer  or  assignment  of  the  deposit-book  or  the 
money  of  a  depositor  Avonld  be  acknowledged,  but  the 
treasurer  might,  in  his  discretion,  allow  money  to  be  paid 
on  a  depositor's  check  ;  and  a  depositor,  in  expectation  of 
death,  handed  her  deposit-book  to  a  friend,  saying  :  "  The 
money  there  is  for  my  sister  in  Ireland,  but  if  I  don't  die 
I  want  it  back,"  and  died  the  next  day,  it  was  held  that 
there  was  no  valid  gift  of  the  money,  the  book  being 
treated  as  the  pass-book  of  an  ordinary  bank  of  dejDosit."'^ 

331.  Deposit-Book  of  a  Savings  Bank  Must  Be 
Delivered — Acquiescence. — To  constitute  a  valid  gift 
the  deposit-book  of  a  savings  bank  must  be  delivered  to 
the  donee,  or  to  some  one  for  him.  And  so  a  verbal 
agreement  between  husband  and  wife  that  moneys  de- 
posited in  a  savings  bank  in  their  joint  names,  and 
belonging  to  them  jointly,  should  become,  at  the  death  of 
either,  wholly  the  property  of  the  other,  and  there  was  no 
delivery  of  the  dej^osit-book,  it  was  held  to  be  neither  an 
executed  contract  nor  a  gift  mortis  causa.^  There  could  be 
no  question  that  it  was  not  a  gift  inter  vivos,  for  neither 
contemplated  its  taking  effect  until  the  other's  death.* 

^  Gerry  v.  Howe,  130  Mass.  350. 

2  Appeal  of  Walsh,  122  Pa.  St.  177;  S.  C.  9  Araer  St.  Rep.  83. 

See  other  cases  in  Schollmier  v.  Schollmier,  78  la.  426;  RMden  v.  Thrall,  55 
Hun,  185;  S.  C.  24  Abb.  N.  C.  52;  affirmed  125  N.  Y.  572;  Walsh  r.  Bowery 
Savings  Bank,  15  Daly,  403;  S.  C.  2  City  Ct.  (N.  Y.)  276;  Develin  v.  Farmer, 
16  Daly,  98  ;  Miller  v.  Clark,  40  Fed.  Rep.  15.  The  holder  of  a  savings  bank-book 
may  constitute  himself  a  trustee  of  the  fund:  Beaver  v.  Beaver,  117  N.  Y.  421 ; 
Atkinson,  In  re,  16  R.  I.  413;  Buckingham's  Appeal,  60  Conn.  143. 

3  Drew  V.  Hagerty,  81  Me.  231 ;  S.  C.  10.  Am.  St.  Rep.  255  ;  Augusta  Savings 
Bank  v.  Fogg,  82  Me.  538  ;  in  case  of  infant  donee  see  Beaver  v.  Beaver,  62  Hun, 
194. 

*  Other  cases  are  Pope  v.  Burlington  Savings  Bank,  56  Vt.  284;  S.  C.  48  Am. 
Rep.  781 ;  Beaver  v.  Beaver,  117  N.  Y.  421,  reversing  53  Hun,  258 ;  Hoar  v.  Hoar, 


Bank  Checks  and  Deposits.  321 

But  where  the  dej^osit  is  in  the  name  of  the  donee, 
and  it  is  not  subject  to  the  control  of  the  donor,  or 
is  accompanied  by  words  constituting  it  a  trust,  then 
a  delivery  of  a  deposit  or  pass-book  is  not  necessary ;  ^ 
yet  where  a  niece  sent  to  her  uncle  at  different  times 
money  amounting  to  $100,  and  he  put  it  into  a  savings 
bank  for  her,  but  retained  possession  of  the  bank-book. 
She  came  to  his  house,  and  there  was  taken  sick 
and  died.  After  she  despaired  of  recovering  she  said 
she  gave  the  money  to  her  uncle,  and  desired  that  he 
have  it.  It  did  not  appear  that  she  delivered  the  bank- 
book or  anvthinsr  else  to  him.  It  was  held  that  there  was 
no  valid  gift,  and  although  her  father  had  signed  and  de- 
livered to  her  uncle,  after  her  deatli,  a  writing  to  the  effect 
that  he  was  perfectly  satisfied  with  the  uncle  claiming  the 
money,  and  that  he  would  make  no  claim  to  it,  it  was  held 
that  this  was  not  a  valid  accord  and  satisfaction,  and  he 
was  entitled  to  claim  the  money  as  administrator  of  his 
daughter.^  But  where  the  donor  was  sick  and  at  the  time 
gave  the  donee  a  written  order  on  the  savings  bank  for  the 
payment  to  him  of  a  sum  of  money  on  deposit  in  her  name, 
with  a  memorandum  attached  that  "  the  book  must  be 
sent  with  this  order,"  and  also  gave  a  written  order  on  G, 
who  had  the  deposit-book,  to  deliver  it  to  the  donee,  and 
the  latter  presented  the  order  for  payment  to  the  bank 
and  was  told  that  it  was  all  right,  but  no  pa3nnent  could 
be  made  to  him  until  he  presented  the  deposit-book,  which 
he  did  not  do  until  after  the  donor's  death,  it  was  held 

5  Redf.  637;  Case  v.  Dennison,  9  R.  I.  SS ;  Taylor  v.  Henry,  48  Md.  550;  S.  C 
30  Am.  Rep.  486. 

1  Smith  V.  Ossipee  Valley  Savings  Bank,  64  N.  H.  228;  S.  C.  10  Am.  St.  Rep. 
400 ;  Howard  v.  Windham  Co.  Savings  Bank,  40  Vt.  597.  See,  also,  Beaver  v. 
Beaver,  62  Hun,  194 ;  S.  C.  16  N.  Y.  Supt.  476. 

!*  French  v.  Raymond,  39  Vt.  623  ;  Beaver  i-.  Beaver,  117  N.  Y.  421  ;  reversing 
53  Hun,  258. 
21 


322  Gifts. 

that  the  gift  was  incomplete,  it  not,  as  one  reason,  how- 
ever, appearing  that  the  donor  died  of  the  disease  he  had 
when  he  gave  the  order  for  payment  to  the  donee.^  So 
where  a  depositor  in  a  savings  bank  ordered,  in  1874,  an 
entry  to  be  made  in  her  account  in  her  deposit-book  as 
follows  :  "  Frank  B.  Smith,  hatter,  Danbury,  Conn.,  son 
of  Joseph  Smith  and  Cornelia ;  to  be  drawn  by  Rachel 
[the  donor]  ;  after  death,  by  Frank ;"  and  in  a  deposit- 
book  in  another  savings  bank  held  by  her,  four  years 
previously  there  had  been  entered  :  "  This  account  is  in 
trust  for  Frank  B.  Smith,"  to  which  she  signed  her  name  ; 
but  it  appeared  that  she  kept  the  pass-books  in  her  own 
possession,  and  drew  the  dividends,  until  she  became  in- 
sane, in  1878.  It  was  held  that  Frank  B.  Smith,  although 
he  knew  of  these  entries  during  the  sanity  of  the  donor, 
and  understood  that  the  funds  were  deposited  in  trust  for 
him,  was  not  entitled  to  be  protected  against  the  donor  or 
her  guardian  drawing  the  funds  from  the  bank.  The 
court  declared  that  there  was  no  perfected  gift.^  With 
intent  to  make  a  gift  to  his  two  sons,  R.  and  J.,  C.  de- 
livered to  each  of  them  a  check  upon  a  savings  bank,  pay- 
able four  days  after  his  death.  He  said  he  desired  to  re- 
tain the  control  of  the  money  as  long  as  he  lived,  in  order 
to  receive  the  interest.  At  the  same  time  he  delivered  to 
R.  his  pass-books,  saying  they  would  want  them  to  get 
the  money,  he  not  considering  them  safe  there,  and  direct- 
ing R.  to  take  care  of  them,  which  he  did  by  depositing 
them  in  the  bank,  where  they  remained  until  C.'s  death. 
C.  had  more  money  in  the  bank  than  was  called  for  by 
the  respective  checks.  It  was  considered  that  there  was 
no  valid  gift,  the  delivery  of  the  checks  and  jDass-books 

^  Conser  v.  Snowden,  54  Md.  175  ;  S.  C.  39  Am.  Rep.  368  ;  Dougherty  v.  Moore, 
71  Md.  248. 

2  Smith  V.  Speer,  34  N.  J.  Eq.  336. 


Bank  Checks  and  Deposits.  323 

not  transferring  the  funds  deposited,  for  the  reason  that 
C.  had  not  absolutely  parted  with  his  control  over  them, 
nor  was  there  a  valid  declaration  of  a  trust.^ 

332.  Gift  of  Deposit-Book  is  Not  a  Gift  of  the 
FuxD — English  Rule. — The  English,  Irish,  and  Cana- 
dian rule  with  respect  to  the  gift  of  the  deposit-book  of  a 
savings  bank  differs  from  the  usually  accepted  rule  fol- 
lowed in  this  country.  Thus  a  decedent  as  a  gift  mortis 
causa  gave  the  claimant  her  bank-book  of  a  savings  bank, 
intending  thereby  to  make  her  a  present  of  the  deposit. 
A  rule  of  the  bank  provided  that  the  bank  would  be  open 
five  days  in  the  year,  ''  on  which  the  book  of  each  depos- 
itor shall  be  produced  at  the  office  of  this  savings  bank 
for  the  purpose  of  being  inspected,  examined,  and  verified 
with  the  books  of  the  institution  by  the  auditor  or  audi- 
tors." Another  rule  provided  that  payment  would  be  made 
only  to  the  depositor  himself,  or  on  his  power  of  attorney 
during  life  ;  and  after  his  death  if  the  deposit  exceeded 
£50,  it  could  only  be  paid  on  production  of  letters  of  admin- 
istration. The  attempted  gift,  however,  was  held  invalid, 
being  deemed  nothing  more  than  the  pass-book  of  an 
ordinary  bank  of  deposit ;  being  only  a  mere  voucher 
for  the  debt,  not  embodvins;  the  contract  between  the  de- 
positor  and  the  bank.^ 

333.  Donor    Reserving    Interest   on    Deposit. — 

Another  phase  of  deposits  in  savings  banks,  is  where  the 
donor  retains  the  right  to  draw  and  use  the  accruing  in- 
terest thereof.  Such  a  reservation  is  not  inconsistent 
with   the    validity    of  a  gift.     Thus  a  father  deposited 

1  Curry  v.  Powers,  70  N.  Y.  212;  S.  C  26  Am.  Rep.  577. 

2  M'Gonnell  v.  Murray,  3  Ir.  Eq.  460  (1S69) ;  McCabe  i'.  Robertson,  IS  C  P. 
U.  C.  471  (deposit  receipt)  ;  Lee  v.  Bank  of  British  N.  A.,  30  C.  P.  U.  C.  255 
(deposit  receipt) ;  Ex  parte  Gerow,  10  N.  B.  512  (deposit  receipt) ;  Moore  v.  Ulster 
Bank,  11  Ir.  C.  L.  512  (1877). 


824  Gifts. 

money  in  a  savings  bank  in  the  name  of  liis  daughter,  in- 
tending it  as  a  present  to  her,  subject,  however,  to  the 
right  in  himself  and  wife  to  take  the  income  during  their 
lives.  The  daughter  was  informed  of  the  arrangement 
and  assented  to  it,  but  the  deposit-book  was  never  deliv- 
ered to  her.  This  was  held  to  be  a  good  gift  of  the  de- 
posit, subject  to  the  life  interest  specified.^  A  deposited 
all  the  money  allowed  in  such  a  bank  in  his  own  name 
and  on  his  own  account,  making  three  other  de2:>osits  as 
trustee,  one  of  which  was  in  trust  for  his  only  son  by 
name,  and  the  others  in  trust  for  his  two  grandchildren 
by  name.  For  these  deposits  he  took  separate  bank- 
books containing  entries  of  the  same,  which  he  retained 
until  his  death.  During  his  lifetime  he  collected,  re- 
ceipted for,  and  used,  as  his  own,  all  the  dividends  declared 
upon  these  deposits.  A  by-law  j^rovided  that  "  no  person 
shall  receive  any  part  of  the  principal  or  interest,  with- 
out producing  the  original  books,  in  order  that  such  pay- 
ments may  be  entered  therein;"  and  also  that  "any 
depositor,  at  the  time  of  making  his  deposit,  may  designate 
the  person  for  whose  benefit  the  same  is  made,  which 
shall  be  binding  on  his  legal  rej^resentative."  In  a  con- 
test over  these  three  deposits,  it  was  held  competent  to 
show,  in  addition  to  the  above  facts,  that  A  had  said  "  that 
he  put  this  money  in  the  bank  for  them  [the  son  and  two 
grandchildren]  ;  that  he  wanted  to  draw  the  interest 
during  his  lifetime  ;  and  that  after  he  was  gone  they  were 
to  have  the  money  ;"  and  that  upon  all  the  facts,  as 
stated,  and  this  evidence,  a  jury  would  be  justified  in  find- 
ing that  A  had  fully  constituted  himself  a  trustee  for  the 
donees.^     But  where  the  donor  assigned  the  certificate  of 

1  Smith  V.  Ossipee  Valley  Savings  Bank,  64  N.  H.  228  ;  S.  C.  10  Am.  St.  Kep. 
400 ;  Boone  v.  Citizens'  Savings  Bank,  21  Hiin,  2o5. 

^Gerrish  v.  New  Bedford,  etc  ,  Bank,  128  Mass.  159  ;  S.  C.  35  Am.  Kep.  365. 


Bank  Checks  and  Deposits.  325 

deposit  of  a  savings  institution  in  trust  for  his  son,  reserv- 
ing the  right  to  use  the  money  during  his  life,  and  di- 
rected the  residue  to  be  paid  at  his  death  to  his  son,  the 
gift  was  liekl  invalid  for  -want  of  actual  delivery,  though 
the  assignee  surrendered  the  certificate  and  took  out  a 
new  one  during  the  life  of  the  assignor,^  A,  being  sick, 
gave  his  daughter  certificates  of  deposit.  Twice  afterward, 
when  the  interest  matured,  she  took  the  certificates  to  the 
bank  and  got  them  renewed,  and  gave  them  back  to  him 
and  he  handed  them  back  to  her,  telling  her  to  take  them 
home,  which  she  did.  The  interest  was  added  to  the 
certificates  at  each  renewal.     This  was  held  to  be  a  valid 

334.  Redelivery  of  Deposit-Book  to  Doxor. — A 
deposited  a  sum  of  money  in  a  savings  bank  in  the  name 
of  B,  "  subject  to  the  order  of  A."  A  few  days  thereafter  A 
asked  B  to  come  to  his  house,  showed  him  the  deposit- 
book,  said  he  was  going  to  give  it  to  him,  and  delivered  it 
temporarily  into  his  possession.  He  then  said  he  would 
keep  the  book  for  B,  as  he  had  a  safe,  and  took  and  put 
the  book  into  it.  On  the  same  day.  A,  at  B's  request, 
signed  and  delivered  to  him  a  paper  certifying  that  the 
money  was  for  him.  A  never  drew  the  interest  upon  the 
deposit,  but  allowed  it  to  accumulate  during  his  life,  in  no 
way  asserting  a  personal  ownershij)  of  the  fund.  After  A's 
death,  although  B  notified  the  bank  that  the  money  was 
his,  the  bank  paid  the  amount  of  the  deposit  to  the  ad- 
ministrator of  A ;  whereupon  B  sued  the  bank  for  the 
amount  thereof  It  w^as  decided  that  the  jury  was  author- 
ized to  find  a  completed  gift  of  the  money  by  A  to  B,  and 
that  the  bank  was  liable  to  B   for  it.^     So  where  A  de- 

1  Withers  v.  Weaver,  10  Pa.  St.  391. 

2  McCabe's  Estate,  G  Pa.  C.  C.  42. 

^Eastman  v,  Woronoco  Savinj^s  Bank,  136  Mass.  208. 


326  Gifts. 

posited  funds  in  such  a  bank  in  his  own  name  as  trustee 
for  B,  gave  the  bank-book  to  him,  received  it  back  and  it 
so  remained  until  his  death,  it  was  hekl  to  be  a  completed 
gift,  enforceable  in  equity,  A  holding  the  book  as  a  trus- 
tee.' 

335.  Deposit  in  Two  Names — Gift  to  the  Survivor. 
— It  is  no  uncommon  thing  to  meet  with  cases  where 
money  has  been  deposited  in  bank  by  a  depositor  to  the 
credit  of  himself  and  another  ;  and  the  question  arises,  if 
the  transaction  amounts  to  a  gift.  Each  case  will  have  to 
be  examined  by  itself,  and  stands  upon  its  own  jieculiar 
facts.  In  New  York  a  husband  deposited  his  money  in  a 
savings  bank  in  his  own  name  and  that  of  his  wife,  as 
follows  :  "  Richard  or  Kate  Ward,"  and  had  the  entry 
thereof  so  made  in  his  j^ass-book.  He  drew  from  the  ac- 
count on  several  occasions,  but  she  never  did  until  after 
she  came  into  the  possession  of  the  pass-book  after  his 
death.  It  was  decided  that  this  did  not  constitute  a  gift 
by  the  husband  to  the  wife,  especially  in  view  of  the  fact 
of  his  retaining  the  fund  in  his  own  name,  and  thereby 
evidencing  an  intention  not  to  lose  control  over  it.^  A 
husband  ])\\i  his  money  in  a  savings  bank,  saying  that  he 
wanted  it  so  that  either  he  or  liis  wife  could  draw  it  out ; 
and  both  he  and  his  wife  entered  their  names  on  the 
signature-book,  op^DOsite  which  the  clerk  of  the  bank 
wrote  the  words  "  to  be  drawn  by  either."  A  pass-book 
was  given  to  the  husband,  as  a  voucher  for  the  deposit.  It 
was  held  that  there  was  no  valid  gift ;  nor  was  she  entitled 
to  it  as  survivor.^     An  account  was  opened  in  a  savings 

1  Ray  V.  Simmons,  11  R.  I.  266  ;  S.  C.  23  Am.  Rep.  447  ;  15  Amer.  L.  Reg.  701. 

2  Matter  of  Ward,  51  How.  Pr.  316.  The  court  declined  to  follow  Sandford  v. 
Sand  ford,  45  N.  Y.  723,  where  it  was  held  that  taking  a  note  in  his  own  and  wife's 
name  constituted  such  note  a  valid  gift  without  a  delivery  of  it  to  her. 

3  Brown  v.  Brown,  23  Barb.  565  ;  Drew  v.  Hagerty,  81  Me.  231 ;  S.  C.  10  Am. 
St.  Rep.  255. 


Ba7ik  Checks  and  Deposits.  327 

bank  to  the  credit  of  "James  Cannon,  subject  to  bis 
order,  or  to  the  order  of  Mary  E.  Cannon,"  his  daughter. 
From  time  to  time  money  was  there  deposited.  When 
James  died  Mary  chiimed  that  he,  in,  his  lifetime,  gave 
her  the  deposit-book  with  the  money  to  be  credited 
therein,  to  be  held  by  her  in  trust  for  herself  and  her 
brother  and  sisters.  The  only  way  in  which  money  could 
be  changed  from  one  j^erson's  account  to  another's  in  the 
bank  was  "  by  a  payment  of  the  one  account  and  a  new 
deposit  in  another  account."  James  had  given  the  book 
to  Mary.  But  notwithstanding  these  facts,  the  validity 
of  the  gift  was  denied.  "  The  money  in  question  was 
deposited  in  the  savings  bank,"  said  the  court,  "  to  the 
credit  of  James  Cannon,  and  so  continued  up  to  the  time 
of  his  death.  He  retained  dominion  and  control  over  it 
by  the  very  terms  of  the  account  w^ith  the  bank,  and 
could  at  any  time  have  drawn  it  out,  or  revoked  the 
power  given  to  Mary  E.  Cannon  to  obtain  it  upon  her 
own  order.  If  she  had  drawn  out  any  portion  of  the 
money,  she  would  have  drawn  it  out  as  the  money  of 
James  Cannon,  acting  in  the  matter  as  his  agent,  and  by 
virtue  of  a  then  existing  authority  derived  from  him. 
This  agency  was  revoked  by  his  death,  and  the  bank 
properly  refused  to  recognize  it  after  that  period."  Touch- 
ing the  effect  of  the  delivery  of  the  deposit-book,  it  was 
said  that  the  delivery  could  not  complete  the  gift,  for  the 
only  way  to  transfer  money  in  the  bank  from  one  to 
another  was  "  by  a  payment  of  the  one  account,  and  a 
new  deposit  in  another  account ;"  and  of  this  rule  James 
Cannon  was  well  aware.^  But  in  a  New  York  case  the 
donor  first  deposited  the  money  in  his  own  name.  After- 
ward he  came  with  the  donee  to  the  bank  and  had  his 
account  chano'ed  so  as  to  read  "  Mechanics'  and  Farmers' 

^  Murray  v.  Cannon,  41  Md.  466. 


328  Gifts. 

Savings  Bank,  in  account  with  Valentine  Baker  [the 
donor],  and  Mrs.  Mary  Mack  [the  donee],  order  of  either 
of  them,"  the  donee  at  that  time  signing  the  signature- 
book  of  the  bank.  Still  later  the  donor  said,  S23eaking 
to  the  donee  of  this  account  and  showing  her  the  book, 
"  This  is  yours ;"  and  the  day  before  his  death  he  sent 
the  book  to  her  with  the  message,  "  Tell  my  mother  [the 
donee]  to  keep  it  for  me."  While  it  was  deemed  that  the 
delivery  of  the  book  to  her,  accompanied  by  the  message, 
was  not  enough  to  establish  the  gift  had  the  money  stood 
in  his  name,  yet,  as  she  then  had  the  right  to  draw  the 
money,  the  possession  of  the  book  gave  her  complete 
power  on  that  day  to  draw  out  the  money  for  her- 
self, and  that  she  was  entitled  to  it  as  a  gift.^  So, 
where  the  deposit  was  in  the  name  of  "A  and  B,"  B 
being  the  wife  of  A  ;  and  a  certificate  of  deposit  was  thus 
issued ;  it  was  held  to  be  a  prima  facie  gift  to  her  in  case 
she  survived  him  ;  and  he  not  having  disturbed  it  in  his 
lifetime,  although  the  money  was  his  solely  before  the  de- 
posit, it  becomes  absolutely  hers  at  his  death  ,^  A  depos- 
itor being  in  feeble  health  and  contemplating  a  departure 
from  home  for  the  benefit  of  his  health,  made  a  deposit 
in  a  savings  bank  to  himself  and  mother,  and  it  was  so 
credited  in  his  pass-book  and  the  books  of  the  bank. 
Sometime  afterward  he  went  to  the  bank  with  his  sister 


1  Mack  V.  Mechanics'  and  Farmers'  Savings  Bank,  50  Hnn,  477.  In  New 
Plampshire  it  was  decided  that  an  agreement  between  two  depositors,  tliat  the 
survivor  should  have  the  other's  deposit,  each  retaining  tlie  absolute  title  and 
control  of  his  deposit  during  life,  was  a  testamentary  disposition  of  property  not 
made  according  to  the  statute  of  wills,  and  was  invalid:  Towle  v.  WooJ,  GO  N.  H. 
434.  Donor  had  an  account  in  bank  as  follows:  "  H  for  her  daugliter  Kate,"  and 
then  changed  it  to  "  H  or  sister  J,"  so  J  could  draw  on  it.  H  died  and  in  a  week 
J  also  died,  and  the  bank-book  was  found  with  the  effects  of  S,  another  sister  of 
J,  with  whom  she  lived,  and  who  died  one  week  after  J.  It  was  held  that  there 
was  a  valid  delivery  to  J:    ITannon  v.  Sheehan,  19  N.  Y.  Supp.  698. 

^Eoman  Catholic  Oi'phan  Asylum  v.  Strain,  2  Bradf.  34. 


Bank  CJcecks  and  Deposits.  329 

and  had  the  name  of  his  mother  erased  and  his  sister's 
substituted,  the  account  then  running  "  J.  H.,  M.  J.  and 
the  survivor  of  them  subject  to  the  order  of  either." 
After  this  change  in  the  entry  the  depositor  drew  out  a 
small  part  of  the  fund,  and  died  nearly  three  months 
later.  M.  J,  obtained  possession,  after  his  death,  of  the 
deposit-books  and  drew  the  money  ;  but  it  was  held  that 
she  was  not  entitled  to  it,  for  the  donor  had  only  consti- 
tuted her  his  agent  to  draw  the  fund  during  his  lifetime, 
and  his  death  was  a  revocation  of  the  authority,  a  gift  not 
being  created  by  the  written  entry.  Xor  could  it  be  said 
that  a  trust  had  been  created.^ 

336.  Gift  of  a  Special  Deposit. — A  valid  gift  may  be 
made  of  a  special  deposit  by  a  mere  transfer  of  the  certifi- 
cate of  dej^osit.  In  a  case  of  special  dejDOsit  the  particuLar 
thing  deposited,  whether  it  be  a  bond,  coin,  or  bills,  is  to 
be  returned — the  identical  thing  deposited — and  not  an- 
other, even  tliouH;h  exactlv  like  it.     Where  a  certificate 

1  Taylor  r.  Henry,  48  M<1.  550  ;  S.  C.  30  Amer.  Rep.  5SG. 

See  Hayden  v.  Ilayden,  142  Mass.  448.  A  deposit  made  in  name  of  depositor 
"  or  daughter  B"  was  held  not  a  valid  gift,  even  though  the  donee  was  in  pos- 
session of  the  book  after  the  donor's  diatli,  tiiey  two  living  together,  the  donor 
being  an  invalid  and  the  daughter  transacting  all  her  business :  Bolin's  Est.,  32 
N.  E.  Rep.  626  ;  S.  C.  20  N.  Y.  Supp.  16  ;  Cody's  Est.,  20  N.  Y.  Supp.  16.  A 
donor  had  several  thousand  dollars  standing  to  her  credit  in  a  savings  bank,  and 
she  requested  the  teller  of  the  bank  to  transfer  $1,500  to  each  of  her  three  nieces, 
one  of  whom  was  with  her.  The  teller  did  so,  charging  the  donor's  account 
with  $4,500,  and  opening  an  account  with  each  of  the  nieces  for  $1,500,  and  pre- 
pared a  bank-book  for  each.  The  donor  requested  that  the  bank-books  be  so 
made  that  the  money  could  not  be  drawn  out  during  lier  life,  and  the  feller  in- 
dorsed on  each  of  them  "Only  C  has  power  to  draw."  The  donor  (C)  and  the 
niece  who  was  present  wrote  their  names  in  a  signature-book  kept  by  ihe  bank, 
the  teller  adding  to  the  donor's  name  the  word  "  Trustee."  The  names  of  the 
other  two  nieces  were  afterward  written  on  slips  by  them  and  sent  to  the  bank, 
the  teller  writing  the  donor's  name  with  the  word  trustee  added.  The  donor  be- 
fore the  transfer  had  declared  her  intention  to  make  the  gift  She  took  the 
three  new  books  and  kept  them  during  her  life.  It  was  held  there  was  a  valid 
gift  inter  vivos,  and  that  donor  had  constituted  herself  a  trustee  for  the  donees: 
Buckingham's  Appeal,  60  Conn.  143. 


330  Gifts. 

of  deposit  is  given,  especially  if  payable  to  order,  the 
bank  has  a  right  to  insist  upon  the  return  of  the  certificate 
when  a  return  of  the  deposit  is  desired  or  demanded.  It 
has  therefore  been  held  that  a  transfer  of  the  certificate 
of  deposit  is  a  transfer  of  the  thing  deposited.  This  trans- 
fer of  the  certificate  is  usually  effected  by  indorsement.^ 
But  where  the  special  deposit  was  a  box  of  gold,  no  cer- 
tificate having  been  given,  and  the  person  with  whom  it  was 
dejDosited  was  instructed  by  the  depositor  to  deliver  the 
box  to  no  one  excej^t  himself  or  wife,  and  in  case  of  his 
death,  to  his  wife ;  and  during  his  lifetime  the  husband 
told  her  the  deposit  was  made  for  her,  and  gave  her  the 
key,  saying  she  need  not  send  for  any  of  it,  but  she  must 
go  herself  and  get  it,  which  she  did  after  his  death,  the 
gift  was  held  to  be  incomplete,  it  appearing  that  the  hus- 
band had,  after  the  delivery  of  the  key,  probably  taken 
out  more  than  half  the  gold,  at  least  there  being  less  than 
one-half  the  amount  in  the  box  at  his  death  he  said  there 
was  in  it  at  the  time  he  delivered  the  key.'^ 

337.  OvERTHRow^iNG  Peesumption  of  Gift  Arising 
FROM  Fact  of  Deposit  ix  Alleged  Doxee's  Name. — 
In  a  New  York  case  is  a  dictum  or  intimation  that  the 
fiict  of  making  a  deposit  of  money  in  the  name  of  another, 
or  in  the  dejDOsitor's  name  for  the  benefit  of  another,  does 
not  conclusively  establish  or  show  a  trust,  "  so  as  to  pre- 
clude evidence  of  contemporaneous  facts  and  circumstances 
constituting  res  gestcE,  to  show  that  the  real  motive  of  the 
depositor  was  not  to  create  a  trust,  but  to  accomplish  some 
independent  and  different  purpose  inconsistent  with  an 
intention  to  divest  himself  of  the  beneficial  ownership  of 
the  fund."  ^     The  intimation  here  thrown  out  was  after- 

1  Phillips  V.  Franciscus,  52  Mo.  370  ;  Yo;nig  v.  Young,  80  N.  Y.  422  ;  S.  C.  36 
Am.  Rep.  634;   Welsch  v.  Belleville  Savings  Bank,  'j4  111.  191. 
^Sheegog  f.  Perkins,  4  Baxt.  273. 
3  Mabie  v.  Bailey,  95  N.  Y.  206. 


Bank  Checks  and  Deposits.  331 

ward  followed.  A  father  put  money  in  a  bank,  in  his 
name,  "  in  trust  for  "  his  son,  in  order  to  obtain  the  high- 
est rate  of  interest  which  the  bank  allowed,  not  intending 
to  part  with  the  ownership  or  right  of  receiving  back  the 
money  from  the  bank,  nor  to  make  a  gift  or  transfer  of  it, 
or  in  any  way  part  with  it  to  the  son  ;  and  upon  an  agree- 
ment with  the  bank  that  no  part  of  the  money  should  be 
drawn  from  the  bank  without  the  j^roduction  of  the  bank- 
book, which  he  retained  in  his  own  possession.  After- 
ward he  drew  a  part  of  the  sum  deposited.  It  was  held 
that  the  circumstances  under  which  the  deposit  was  made 
were  admissible  to  vary  or  explain  its  character  as  a  trust ; 
that  the  father  had  no  intention  of  creating  a  trust,  and 
that  none  was  created.^ 

Trust  Raised  by  a  Deposit  of  Money. 

338.  Trust  Kaised  by  Donor  Depositing  Money  in 
Bank — Notice  of  Trust — Revocation. — By  depositing 
money  in  a  savings  bank,  or  in  fact  in  any  other  bank,  a 
depositor  may  raise  a  trust  in  favor  of  a  third  person,  even 
though  the  latter  remain  in  ignorance  of  it  until  after  the 
death  of  the  donor.  Thus  B  deposited  in  a  savings  bank 
$500,  declaring  at  the  time  that  she  wanted  the  account 
to  be  in  trust  for  C.  The  account  was  so  entered,  and  a 
pass-book  delivered  to  B,  which  contained  tliese  entries : 
"  The  Citizens'  Savings  Bank  in  account  with  B,  in  trust 
for  C.  1866,  March  23.  $500."  A  like  deposit,  at  the 
same  time,  was  made  by  B  for  D.  B  retained  possession 
of  the  pass-books  until  her  death,  eleven  years  after  the 
deposits  were  made.  C  and  D  were  ignorant  of  the  de- 
posits until  after  B's  death.  The  money  remained  in  the 
bank,  with  its  accumulated  interest,  until  B's  death,  ex- 

1  Weber  v.  Weber,  9  Daly,  211. 


332  Gifts. 

cept  one  year's  interest  which  she  drew  out.  An  action 
was  brought  against  the  estate  of  B,  and  a  recovery 
allowed ;  uj^on  the  theory  that  B  had  constituted  herself 
a  trustee  for  C  and  D,  the  retention  of  the  pass-book  being 
nothing  more  than  vouchers  for  the  pro2:)erty,  which  she 
retained  as  trustee,  such  retention  not  being  inconsist- 
ent with  the  completeness  of  the  gift,  notice  to  the 
cestuis  que  trust  being  held  not  necessary.  "  Upon  these 
facts  [narrated  above],"  said  the  court,  "  what  other  intent 
can  be  imputed  to  the  intestate  than  such  as  her  acts  and 
declarations  imported,  and  did  they  not  import  a  trust  ? 
There  was  no  contingency  or  uncertainty  in  the  circum- 
stances, and  I  am  unable  to  see  wherein  it  was  incomj)lete. 
The  money  was  deposited  unqualifiedly  and  absolutely  in 
trust,  and  the  intestate  was  the  trustee.  It  would  scarcely 
have  been  stronger  if  she  had  written  in  the  pass-book, 
*  I  hereby  declare  that  I  have  deposited  this  money  for 
the  benefit  of  the  plaintiff  and  I  hold  the  same  as  trustee 
for  her.'  .  .  .  The  retention  of  the  pass-book  was  not 
necessarily  inconsistent  with  this  construction.  She  must 
be  deemed  to  have  retained  it  as  trustee.  The  book  was 
not  the  projDerty,  but  only  the  voucher  for  the  property, 
which  after  the  deposit  consisted  of  the  debt  against  the 
bank."  Referrins;  to  the  lack  of  notice  to  the  donees 
that  they  were  to  be  benefited  by  the  trust  raised,  the 
court  said  that  there  were  facts  from  which  the  inference 
mioht  be  drawn  that  the  donor  re2;arded  the  sjifts  as  fixed 
and  completed.  "  The  circumstance  that  she  did  not  in- 
tend that  the  objects  of  her  bounty  should  know  of  her 
gift  until  after  her  death  is  not  inconsistent  with  it,  and 
the  most  that  can  be  said  is  that  she  may  have  believed 
that  the  deposit  might  be  withdrawn  during  her  life, 
and  the  money  converted  to  her  own  use.  It  is  not  clear 
that  she  entertained  such  a  belief,  but  if  she  did  it  would 


Bank  Chechs  and  Deposits.  333 

not  change  the  legal  effect  of  her  acts."  *  Other  cases 
almost  identical  in  facts  have  been  decided  the  same  way.^ 
So  where  money  was  deposited  with  the  defendant  and  a 
note  taken  jDayable  to  the  dej^ositor  for  another  person,  it 
was  held  that  the  depositor  had  constituted  himself  a 
trustee.^  A  mother  deposited  funds  in  a  savings  bank  in 
the  name  of  her  son,  who  was  thriftless,  and  subsequently 
drew  out  the  funds  and  deposited  them  in  her  own  name. 
After  making  this  change  in  the  funds  she  gave  them  to 
a  friend  (who  had  been  a  friend  to  her  son),  and  asked 
her  to  be  a  mother  to  him,  and  finally  made  the  friend 
her  executrix.  The  son  was  entirely  ignorant  of  the 
transaction  ;  but  it  was  held  that  the  trust  created  by  the 
first  deposit  was  an  irrevocable  gift  which  could  be  en- 
forced against  the  executrix.  "  Her  control  of  the  money," 
said  the  court,  "  and  her  withdrawal  of  it  from  the  bank, 
are  consistent  with  the  theory  of  a  trust,  and  her  subse- 
quent possession  must,  upon  authority,  be  held  to  be  in 
the  capacity  of  trustee,  rather  than  of  the  owner  of  the 
property."  ^  Even  dealing  with  the  fund  as  his  own  by 
the  depositor  does  not  change  the  nature  of  the  transac- 
tion, such  as  drawing  out  the  money  and  replacing  it,  or  a 
part  or  even  more,  or  any  other  act.^ 

339.  Same  Subject — Retaining    Control  of    the 
Fund. — The  cases  upon  the  subject  under  discussion  are 

•Martin?;.  Funk,  75  N.  Y.  134;S.  C.  31  Amer.  Rep.  446.  (Distinguishing 
Brabrook  v.  Savings  Bank,  104  Mass.  228  ;  S.  C.  6  Amer.  Rep.  222,  and  Clark  v. 
Clark,  108  Mass.  522.) 

2  Mabie  v.  Bailey,  95  N.  Y.  20G ;  Ray  v.  Simmons,  11  R.  I.  266  ;  S.  C.  23  Amer. 
Rep.  447  ;  15  Amer.  L.  Reg.  701. 

3  Smith  V.  Lee,  2  T.  &  C.  (N.  Y.)  591. 
*  Matter  of  George,  23  Abb.  N.  C.  43. 

MVillisi'.  Smyth,  91  N.  Y.  297;  Barker  r.  Harbeck,  17  N.  Y.  St.  Rep.  678 ; 
Scott  V.  Harbeck,  49  Hun,  292 ;  K'errigan  v.  Rautigan,  43  Conn.  17.  (In  this  last 
case  the  whole  fund  was  drawn  out  by  the  donor  and  not  replaced  by  him  ;  and 
yet  the  gift  was  held  valid.)     See  Minor  v.  Rogers,  40  Conn.  512. 


334  Gifts. 

very  close,  and  perhaps  not  distinguishable,  and  it  is 
hard  to  say  that  they  are  harmonious.  Take  a  New 
Hampshire  case  as  an  illustration.  Thus  in  that  State 
three  books  of  deposit  of  a  savings  bank  were  found 
among  a  decedent's  effects,  one  each  in  the  names  of  Mary, 
John,  and  Florence.  Mary  stated  that  the  deceased,  her 
father,  deposited  the  money  in  the  bank  in  her  name,  and 
that  he  gave  her  the  book  containing  the  deposit  standing  in 
her  name,  and  that  she  accepted  it  as  a  gift.  As  to  her 
this  was  decided  to  be  a  valid  gift.  But  there  was  no  evi- 
dence tending  to  show  that  John  or  Florence  ever  had  in 
their  possession  the  books  in  their  names,  or  even  knew 
of  their  existence,  until  after  their  father's  death.  A 
by-law  of  the  bank  provided  that  "  Depositors  are  alone 
responsible  for  the  safe  keeping  of  their  books  and  the 
proper  withdrawal  of  their  money  ;  "  and  that  "  Xo  with- 
drawals will  be  allowed  without  the  book,  and  the  book  is 
the  order  for  the  withdrawal."  He  caused  an  entry  to  be 
made  on  the  bank  ledger,  showing  that  the  money  was 
payable  to  his  own  order.  The  court  decided  as  to  John 
and  Florence  there  was  no  gift.  "  Retaining  the  title, 
and  having  the  right  to  dispose  of  the  money  as  he  saw 
fit,"  said  the  court,  "  he  did  not  make  a  gift  of  these  two 
books.  Nor  did  he  on  this  evidence  create  a  binding 
trust  in  favor  of  his  children.  If  a  trust  at  all,  it  was 
executory,  and  without  consideration.  No  beneficial 
interest  vested  in  the  cestuis  que  trust.  They  had  no 
knowledge  of  the  arrangement,  and  were  not  parties  to  it. 
It  was  a  voluntary  disj)Osition  of  his  own  projierty.  If 
notice  to  the  cestuis  que  trust,  or  donees,  was  not  an  essen- 
tial element  of  the  supposed  trust  or  gift,  and  if  the  re- 
tention of  the  pass-books  by  the  donor  is  not  inconsistent 
with  the  completeness  of  the  act,  still  there  must  be  some 
evidence  of  the  donor's  intention  to  create  a  trust  or  to 


Bank  Checks  and  Deposits.  335 

make  a  gift,  before  either  can  be  said  to  exist.  But  tlie 
fact  that  he  attempted  to  make  a  gift,  and  failed,  raises 
no  presumption  that  he  intended  to  establish  a  trust.  The 
latter  cannot  be  inferred  from  a  radical  imperfection  in 
the  former.  The  question  is,  whether  the  depositor's  inten- 
tion to  establish  a  trust  in  favor  of  his  children  is  proved 
by  competent  evidence.  As  there  is  no  express  declaration 
of  a  trust,  as  the  by-law  of  the  bank,  which  became  a  part 
of  his  contract  of  deposit,  is  one  not  inconsistent  with  the 
idea  that  he  was  placing  his  money  there  for  himself,  and 
as  he  retained  the  bank-book  without  notice  to  the  de- 
fendants or  to  any  one  for  them,  and  caused  an  entry  to 
be  made  on  the  bank  ledger  showing  that  the  money  was 
payable  to  his  own  order,  his  intention  to  create  a  trust 
cannot  be  found,"  ^  Now  take  another  New  Hampshire 
case,  not  overruled  by  the  one  cited  above,  and  we  gain  a 
clearer  view  of  the  question  under  discussion.  There  P  de- 
posited in  a  savings  bank  of  that  State  money  in  the  name 
of  L,  of  Maine,  but  for  her  own  use,  assented  in  writing 
to  the  by-laws  of  the  bank,  and  took  and  retained  a  dupli- 
cate book  of  the  deposits  until  her  (P's)  death.  A  by-law 
of  the  bank  provided  that  deposits  should  only  be  with- 
drawn by  the  depositors  or  person  authorized  by  them. 
During  her  last  sickness  P,  for  the  first  time,  told  L  of 
the  gift ;  but  she  had  previously,  however,  told  two  per- 
sons that  she  had  made  a  deposit  in  the  bank  which  she 
intended  for  L,  and  she  showed  to  one  of  them  the  pass 
or  deposit-book.  The  court  decided  that  a  valid  trust 
had  been  created  ;  and  it  was  considered  that  the  by-law 
was  a  potent  factor  in  establishing  the  trust.  "  Although 
one  condition  of  the  by-law  is,"  said  the  court,  "  that  the 

iMarcy  v.  Amazeen,  61  N.  H.  131 ;  S.  C.  60  Am.  Rep.  320;  Bartlett  v.  Rem- 
ington, 59  N.  H.  364.  In  this  last  case  the  money  was  deposited  "  in  trust  for 
Sarah,"  and  it  was  decided  that  parol  evidence  was  admissible  to  show  who  was 
the  beneficiary. 


oot 


Gifts. 


deposit  sliall  only  be  withdrawn  upon  presenting  the 
original  deposit-book,  still,  another  is,  that  it  shall  only 
be  withdrawn  by  the  depositor,  or  some  person  authorized 
by  the  depositor.  Considering,  then,  that  the  donor 
adopted  the  whole  by-law  as  part  of  her  act  in  making 
the  deposit,  there  would  seem  to  have  been  a  clear  and 
absolute  renunciation  of  title  by  her  in  the  fund,  and  un- 
equivocal transfer  of  the  possession  upon  the  terms  and 
conditions  set  forth  in  the  by-law.  She,  in  fact,  chose 
this  mode  of  making  a  complete  and  definite  ajipropria- 
tion  of  the  money.  A  stronger  declaration  of  trust  could 
hardly  be  formed  than  that  created  by  the  manner 
of  making  the  deposits — that  is,  in  the  name  of 
her  niece,  without  qualification  or  condition,  supple- 
mented by  the  by-law  of  the  bank,  which  she  adopted."  -^ 
B  deposited  in  a  savings  bank  $800  in  the  name  of 
C,  but  23ayable  to  himself.  He  took  out  a  deposit- 
book  and  kept  and  controlled  it.  He  drew  out  a  little 
over  one-half  of  this  $800,  and  a  few  months  before 
his  death  directed  the  treasurer  of  the  bank  to  add 
to  the  first  entry  "  Payable  to  S.  Barlow,"  so  as  to  make 
it  read,  "  Payable  to  S.  Barlow  during  his  life,  and,  after 
his  death,  to  Marion  Gushing,"  the  original  C.  B,  before 
he  had  made  the  dej^osit,  executed  his  will,  confirming  all 
gifts  that  he  had  made  or  should  thereafter  make  to  any 
of  his  children.  C  was  only  a  grandchild.  There  was 
no  evidence  that  B  did  or  said  anything  else  in  relation 
to  the  deposit,  or  did  or  said  anything  that  indicated  an 
intention  to  hold  the  deposit-book  in  trust  for  C.  A  by- 
law inserted  in  the  book  provided  that  no  deposit  could 
be  withdrawn  without  the  book  was  produced.  The  bank 
understood  that  B  was  the  depositor,  so  treated  him,  and 
had  no  communication  with  C ;   nor  had  the  latter  any 

1  Blasdel  v.  Locke,  52  N.  H.  238. 


Bank  Checks  and  Deposits.  337 

knowledge  of  the  transaction  during  B's  lifetime.  In  an 
action  by  the  executor  of  B  against  the  bank,  to  which  C 
was  made  a  i)arty,  it  was  held  that  there  was  no  delivery 
nor  acceptance  of  the  deposit  as  a  gift ;  nor  was  B  a  trustee 
of  C,  B  not  having  declared  himself  a  trustee  nor  done 
anything  equivalent  thereto.^  A  left  at  his  death  two 
savings  bank-books,  one  of  which  stood  in  his  own  name 
and  the  other  in  the  name  of  "  B  or  order  of  A."  B  was 
a  son  of  A.  On  the  last  page  of  the  first  book  was  the 
following:  "May  12th,  1878.  Treasurer  of  B  Savings 
Bank  :  Pay  B  what  may  be  due  on  my  deposit-book, 
No.  — ,  A."  On  the  last  page  of  the  second  book  was  also 
the  following:  "August  12th,  1871.  Treasurer  of  B 
Savings  Bank :  At  my  decease  pay  B  what  may  be  due 
on  my  deposit-book,  No. — ,  A."  After  making  further 
deposits  on  both  books,  A  drew  out  a  part  of  the  funds 
deposited  after  the  dates  of  the  orders,  the  books  being 
kept  by  the  treasurer  of  the  savings  bank  and  A  having 
access  to  them  whenever  he  pleased  as  long  as  he  lived. 
He  died  in  1879.  B  never  had  possession  of  the  books 
nor  any  knowledge  of  them  during  the  life  of  his  fjitlier. 
It  was  held  that  there  was  no  gift  of  the  money  repre- 
sented by  the  bank-books.  There  was  no  declaration  of 
A  that  he  intended  a  gift,  and  this,  coupled  with  the  fact 
that  he  had  never  delivered  the  books,  was  sufficient  to 
defeat  the  alleo-ed  sift.^  But  where  a  merchant  in  China 
directed  his  London  correspondent  to  transfer  £1,000 
from  his  tea  account,  and  employ  it  in  exchange  trans- 
actions for  the  benefit  of  his  children  ;  and  in  subsequent 
letters  wrote  to  the  same  correspondent  "that  he  liad 
declined  giving  any  opinion  as  to  the  reinvestment  of  the 
fund,  as  he  considered  he  had  no  further  control  over  it, 

1  Pope  r.  Burlington  Savings  Bank,  56  Vt.  28-1;  S.  C.  48  Am.  Eep.  781. 
'  Burton  v.  Bridgeport  Savings  Bank,  52  Conn.  398 ;  S.  C.  52  Am.  Rep.  602. 
22 


338  Gifts. 

as  it  belonged  to  liis  children,"  "  that  he  had  appropriated 
it  to  them,  and  his  correspondents  were  to  consider  it  as 
theirs ;"  and  the  correspondents  accordingly  oj^ened  an 
account,  headed  with  the  merchant's  name,  "  Exchange 
account  on  account  of  children,"  previously  informing 
him  of  their  intention  to  do  so — it  was  held  that  the  first 
letter  created  a  valid  trust  in  their  favor,  although  the 
fund  was  still  so  far  in  the  donor's  control  as  to  be  liable 
to  his  drawing,  and  although  the  donor  in  one  of  his  let- 
ters had  desired  his  correspondents  to  consider  it  as 
'^  subject  to  the  order  of  his  executors  "  in  the  event  of 
his  death. ^ 

340.  Same  Continued — Evidence — Revocation. — 
Illustrations  are  probably  better  than  anything  that  we 
can  say.  The  practitioner,  however,  will  not  fail  to  notice 
the  manifest  discrepancy  between  the  cases ;  especially 
between  those  of  New  York  and  Massachusetts.  Thus 
in  the  latter  State  A  deposited  a  sum  of  money  in  a  sav- 
ings bank  in  B's  name.  The  pass-book  was  issued  in  the 
hitter's  name,  with  the  following  condition  annexed  :  "  In- 
terest to  be  paid  on  order  of  A.  Principal  to  be  drawn 
by  B  after  decease  of  A."  The  latter  retained  the  pass- 
book until  his  death ;  and  never  had  any  communication 
with  B  in  regard  to  the  matter,  B  not  knowing  of  the 
transaction  until  after  the  former's  death.  It  was  pro- 
vided by  a  by-law  of  the  bank  that  money  deposited  in  it 
should  only  be  drawn  out  by  the  depositor  or  some  per- 
son by  him  legally  authorized,  nor  should  any  payment 
be  made  to  any  person  except  on  the  production  of  the 
pass-book.  But  any  depositor  might  designate,  at  the 
time  of  making  the  deposit,  the  period  during  which  he 
desired  the  same  should  remain,  and  the  person  for  whose 

» Vandenberg  v.  Palmer,  4  K.  &  J.  204. 


Bank  Checks  and  Deposits.  339 

benefit  it  was  made ;  and  he  should  be  bound  by  such 
condition  annexed  to  tiie  deposit.  After  A's  death  B 
sought  to  recover  the  deposit ;  but  he  was  not  allowed  to 
do  so,  on  the  ground  that  there  was  no  gift  perfected  nor 
any  trust  raised.  The  court  said  :  "A  declaration  of  trust 
by  the  owner,  or  a  deposit  of  the  fund  in  his  name  as 
trustee,  or  a  deposit  in  the  name  of  another,  will  not  of 
itself  be  sufficient  to  prove  a  gift  or  voluntary  trust ;  there 
must  be  some  further  act  or  circumstance  showing  a  per- 
fected gift  of  the  legal  or  equitable  interest."  "  The  only 
contract  made  was  between  the  dejDOsitor  and  the  bank. 
The  form  of  the  deposit  and  the  condition  annexed  were 
parts  of  that  contract,  and  in  some  respects  modified  it ; 
but,  as  regards  the  claimant,  they  are  nothing  more  than 
declarations  of  the  depositor; competent  only  upon  the  ques- 
tion of  his  intention."  "  If,  by  the  delivery  of  the  book, 
or  a  sufficient  declaration  of  trust,  or  other  act  between 
the  depositor  and  the  claimant,  the  latter  should  acquire 
a  right,  the  form  of  deposit  would  estop  the  depositor,  as 
against  the  bank,  from  denying  that  right.  The  delivery 
of  the  book,  or  the  other  act,  is  the  voluntary  and  effi- 
cient act  which  perfects  the  gift ;  until  that  is  done,  even 
if  the  intention  is  manifested,  there  can  be  no  gift  which 
will  give  legal  or  equitable  rights.  But  no  inference  can 
be  drawn,  from  the  form  or  circumstances  of  the  deposit, 
that  the  depositor  intended  to  give  to  the  claimant  any 
right  or  interest  in  the  fund  to  take  effect  during  his  own 
life,  and  deprive  him  of  the  dominion  and  control  of  the 
property,  and  prevent  him  from  revoking  the  gift."  ^  In 
a  subsequent  case  in  this  same  State  it  was  decided  that 
to  make  a  gift  valid,  in  case  of  a  deposit  in  a  savings 
bank  in  the  donee's  name,  without  the  donee's  knowledge, 

1  Sherman  v.  New  Eedford,  etc.,  Bank,  138  Mass.  581 ;  Stone  v.  Bishop,  4  Clif. 
593  ;  S.  C.  6  Repr.  706. 


340  Gifts. 

the  depositor  retaining  possession  of  the  deposit-book,  the 
money  must  be  deposited  by  the  donor  with  the  intention 
of  making  a  gift  of  it  to  the  person  in  whose  name 
it  is  put,  and  it  must  be  accepted  by  him.  To  show  the 
intention  of  the  donor  in  retaining  possession  of  the  de- 
posit-book, in  an  action  by  the  donee  against  the  bank,  it 
was  held  competent  to  prove  the  taking  of  an  order  on 
the  bank  signed  by  the  donee  for  the  payment  of  a  cer- 
tain sum  to  the  depositor,  and,  after  the  latter's  death, 
his  declarations  and  letters  respecting  it,  preceding  and 
accompanying  it.  In  this  case  the  donee  received  in  a 
letter  an  order  on  the  bank  for  the  payment  of  a  certain 
sum  to  the  de]30sitor,  to  be  signed  by  the  donee.  The 
letter  was  not  in  the  handwriting  of  the  depositor,  but 
was  signed  in  his  name  by  another  person,  whose  agency 
was  not  shown.  The  donee  signed  this  order  and  re- 
turned it  to  the  depositor.  The  court  excluded  this  letter, 
but  this  was  decided  to  be  error.  So  it  was  held  admis- 
sible for  the  donee  to  show  a  letter  from  the  treasurer  of 
the  bank  to  the  depositor,  who  had  deposited  money 
therein  in  his  own  name,  notifying  him  that  a  certain 
sum  was  standing  to  his  credit  in  the  bank  on  which  he 
was  not  entitled  to  interest,  because  in  excess  of  the 
amount  upon  which  interest  could  be  drawn.  The  donee 
was  allowed  to  show  the  declarations  of  the  donor  relating 
to  the  deposit ;  but  those  opposing  the  gift  were  not  allowed 
to  show  the  declarations  of  the  depositor,  made  some  time 
after  the  money  was  deposited,  with  reference  to  her  in- 
tention not  to  make  a  gift,  which  were  made  when  she 
came  to  make  her  Avill.  The  theory  upon  which  these 
were  excluded  was  that  the  gift,  if  perfected,  was  a  com- 
pleted one  when  the  deposits  were  made  and  the  orders 
signed  ;  and  any  act  of  the  donor  thereafter  could  not  re- 


Bank  Checks  mid  Deposits.  341 

voke  it.^  Evidence  that  money  was  deposited  "  in  trust  " 
for  the  claimant  by  the  dejDOsitor  who  kept  the  deposit- 
book,  and  who  shortly  before  his  death  said  "  I  put  in 
for  yon,"  in  the  savings  bank,  "  that  money  is  yours," 
will  justify  a  finding  that  there  was  a  perfected  gift  to 
that  person."  A  somewhat  stronger  case  occurred  in 
Maine.  There  a  grandmother  told  the  treasurer  of  a 
savings  bank  she  desired  to  make  a  deposit  for  each  of 
four  grandchildren,  naming  B  as  one  of  them,  to  which  she 
proposed  to  make  additions  from  time  to  time,  and  ex- 
pressed the  hope  that  with  the  accumulated  interest  the 
deposits  might  amount  to  enough  to  be  of  advantage  to 
them  when  they  attained  a  suitable  age  to  be  entrusted 
with  such  sums  of  money.  She  said  she  desired  "  to  do 
something  for  the  children."  She  took  out  pass-books 
in  the  name  of  each  child,  in  each  of  which,  and  in  the 
bank-books,  was  entered  "  subject  to  the  order  of  F  [the 
grandmother]  during  her  lifetime."  She  afterward  told 
B  what  she  had  done  and  that  the  money  was  for  him 
and  the  other  three  children.  She  made  other  deposits, 
but  only  drew  one  dividend.  Before  her  death  she  took 
the  books  to  the  bank  and  told  the  treasurer  "  that  the 
time  had  come  when  she  desired  to  make  such  a  change 
in  the  terms  of  the  deposits  made  for  her  grandchihh'en 
...  as  would  give  them  full  control  over  them,  and  the 
amounts  on  each  book  become  the  absolute  property  of 
the  parties  named  therein,  and  her  right  to  control  tliem 
should  cease.  Her  expressed  wish  was  that  her  claim 
over  the  amount  of  the  deposits  should  be  withdrawn  as 
to  each  case  and  the  books  so  changed  that  they  would 
stand  in  the  names  of  the  grandchildren  witliout   any 

^  Scott  r.  Berkshire,  etc.,  Bank,  140  Mass.  157;  Alger  t-.  North  End  Savings 
Bank,  146  Mass.  418. 
^  Alger  V.  North  End  Savings  Bank,  146  Mass.  418. 


342  Gifts. 

restriction  whatever."  At  her  request  the  treasurer  then 
and  there  erased  from  the  pass-books  and  bank-books  the 
original  entry,  "  subject  to  the  order  of  F."  She  notified 
B  by  letter  of  this  change  and  that  the  pass-books  would 
be  delivered  the  first  time  they  met.  B  answered,  request- 
ing that  the  books  be  sent  to  him.  Shortly  before  her 
death  she  delivered  them  to  C,  with  a  written  order  to 
enable  him  to  draw  the  amount  of  each  deposit,  which  he 
did.  B  sued  C  for  the  amount  of  his  deposit,  and  recov- 
ered it  \x])on  the  ground  that  the  deposit  when  first  made 
created  a  valid  trust  and  F  controlled  the  same  in  trust 
for  B ;  that  her  subsequent  acts  and  declarations,  at  the 
time  of  the  change  of  the  entries  in  the  books,  showed  a 
completed  and  executed  gift,  divesting  her  of  any  interest 
therein  as  trustee  or  otherwise,  she  thereafter  holding  the 
pass-books  in  trust  for  B  ;  and  that  C  took  the  pass-books 
without  any  consideration  and  with  full  knowledge  of  the 
gift.^  But  where  the  deposit  was  made  "  in  trust "  merely, 
without  any  declaration  whatever  of  a  trust,  and  the  donor 
retained  the  pass-books  until  his  death,  it  was  held  that 
there  was  no  gift.^  Yet  where  A  handed  over  a  sum  of 
money  to  B  for  the  use  of  C  and  took  from  B  a  certificate 
in  writing,  expressing  that  it  Avas  the  sum  given  to  C  in 
A's  will,  and  obliging  B  to  annually  pay  the  interest  to  C, 
the  gift  was  held  to  be  a  completed  one  and  irrevocable.^ 
In  New  Jersey  a  husband  deposited  money  in  a  savings 
bank,  the  entry  being  as  follows :  "  Bank  for  Savings, 
in  account  with  A.  G.  and  wife  E.,  or  either."  At  the 
time  of  the  deposit  he  had  as  much  deposited  in  his  own 

1  Barker  v.  Frye,  75  Me.  29. 

2  Robinson  v.  Ring,  72  Me.  140 ;  S.  C.  "9  Amer.  Rep.  308 ;  Nortlirop  v.  Hale, 
73  Me.  66,  71.  Contra,  Witzel  v.  Chapin,  3  Bradf.  386;  Boone  v.  Citizens' 
Savings  Bank,  21  Hun,  235  (donor  drew  out  one  year's  interest,  still  gift  held 
valid ). 

3  Parker  v.  Ricks,  8  Jones  L.  (N.  C.)  447. 


Bank  Checks  and  Deposits.  343 

name  as  the  bank  would  receive.  He  himself  drew  the 
interest  on  the  joint  deposit.  No  delivery  of  the  pass- 
books was  shown,  and  the  only  evidence  of  a  gift  was  a 
declaration  to  his  wife,  when  she  was  scolding  him  about 
drawing  the  other  money  from  the  bank,  that  he  would 
have  no  more  to  do  with  it.  It  was  held  that  no  gift  was 
established  by  the  proof.^ 

341.  Same  Continued — Some  Massachusetts  Cases. 
— We  have  considered  it  best  to  treat  some  of  the  Massa- 
chusetts cases  in  a  separate  section,  chiefly  for  the  reason 
that  they  are  not  in  strict  harmony  with  cases  from  other 
States,  nor,  probably,  are  they  entirely  consistent  with 
themselves.  The  earliest  case  of  a  trust  (not  a  gift)  is 
where  A  was  president  of  a  society  and  was  charged  with 
depositing  its  funds  in  a  savings  institution.  He  took 
the  money  and  deposited  in  the  savings  institute,  the 
entry  of  deposit  being,  both  in  the  deposit-book  and  in 
the  books  of  the  institute,  "A  in  trust  for  the"  society, 
it  being  named.  Thereafter  other  sums  were  deposited 
by  other  individuals,  which  belonged  to  the  society  and 
in  whose  hands  they  had  been  placed  for  that  purpose, 
and  were  entered  in  the  same  deposit-book  and  in  the 
books  of  the  bank  in  the  same  way  as  previously  de- 
scribed. It  appeared  that  the  treasurer  of  the  institution 
believed  and  supposed  that  the  deposits  were  made  with 
the  understanding  that  they  Avere  wholly  under  A's  con- 
trol and  subject  only  to  his  order ;  and  the  institution 
had  invariably  held  itself  answerable  to  the  individual 
depositing  the  money ;  yet  the  court  decided  that  the 
institution  was  chargeable  as  a  trustee  of  the  society  of 
which  A  was  president,  and  that  the  fund  could  be 
reached  by  the  creditors  of  the  society.^     In  a  very  much 

1  Schick  V.  Grote,  42  N.  J.  Eq.  352. 

"Raynes  v.  Lowell,  etc.,  Society,  4  Cush.  343.     See  Wall  v.  rroviJent  Institu- 
tion for  Savings,  3  Allen,  96. 


344  Gifts. 

earlier  case  in  that  State,  before  her  marriage,  a  wife  held 
stock  in  an  incorjDorated  bank  and  received  the  profits 
thereof,  even  after  she  Avas  married,  until  the  charter  ex- 
j)ired;  at  which  time  the  stockholders  were  entitled  to 
subscribe  a  portion  of  the  amount  of  their  shares  in  a 
new  bank.  Her  husband  subscribed  the  authorized 
amount  in  the  name  of  his  wife,  and  refused  to  receive 
the  remainder  due  her  in  money,  saying  it  was  not  his 
(which  it  would  have  otherwise  been  by  the  common  law), 
but  liis  wife's.  In  a  contest  between  her  and  his  admin- 
istrator, who  had  received  such  remainder  and  the  divi- 
dends of  the  2^rofits  on  the  shares,  it  was  decided  that  she 
was  entitled  to  recover  all  the  sums  so  received  by  them.^ 
Where  a  husband  deposited  money  in  a  savings  bank, 
in  the  name  and  to  the  credit  of  his  wife,  he  declaring 
that  the  money  was  hers  and  that  he  desired  it  put  in  her 
name,  and  delivered  the  deposit-book  to  her,  it  was  held 
that  the  money  inured  to  her  sole  benefit  after  his  decease, 
as  aofainst  his  heirs  and  administrators.    This  was  deemed 

O 

especially  true  when  he  kept  a  separate  account  in  his 
own  name  in  the  same  bank  and  at  the  same  time.^ 
A  deposited  a  sum  of  money  in  his  own  name  in  a  sav- 
ings bank,  and  at  the  same  time  deposited  another  sum  in 
the  name  of  "A,  trustee  for  C,"  who  was  his  daughter. 
He  always  retained  in  his  possession  the  pass-books. 
After  his  death  C  sought  to  recover  the  money  dej)Osited 
by  A  as  trustee ;  but  it  was  held  that  parol  evidence  was 
admissible  to  show  that  both  sums  of  money  deposited 
were  his  and  that  one  was  made  in  her  name  because  the 
amount  of  both  exceeded  the  sum  which  the  law  allowed 
the  bank  to  hold  for  a  single  depositor,  notwithstanding  a 
by-law  of  the  bank,  assented  to  by  A,  providing  that  any 

^Stanwood  v.  Stanwood,  17  Mass.  57,  citing  Nash  r.  Nash,  2  Mad.  133.     See, 
also,  Phelps  v.  Phelps,  20  Pick.  556,  and  Ames  v.  Chew,  5  Met.  320. 
2  Fisk  V.  Cushman,  6  Cush.  20  ;  S.  C.  52  Am.  Dec.  7C1. 


Bank  Checks  and  Deposits.  345 

depositor  might  designate  at  the  time  of  deposit  for  whose 
benefit  the  same  was  made,  and  should  be  bound  by  such 
condition.^  Where  a  widow  had  received  money  of  her 
husband,  and  during  his  lifetime  deposited  it  in  a  savings 
bank  in  her  own  name,  she  was  not  permitted  to  recover 
it  after  his  death  on  proof  that  the  money  was  his,  was  so 
deposited  at  his  request  and  for  his  benefit,  the  presump- 
tion of  a  gift  being  rebutted.^  So  one  depositing  his  own 
money  in  a  bank  in  the  name  of  another  person  to  avoid 
attachment  may  maintain  an  action  for  it  against  the 
bank  in  his  own  name,  if  he  did  not  intend  to  make  a  gift 
or  transfer  to  that  person  of  the  money,  and  if  he  has 
tendered  to  the  bank  his  pass-book,  without  even  giving 
a  bond  of  indemnity.^  So,  also,  where  a  husband  depos- 
ited money  in  a  savings  bank  in  his  wife's  name,  and  had 
the  bank-book  therefor  made  out  in  her  name  and  deliv- 
ered to  her,  he  was  not  allowed  to  recover  of  the  bank  the 
amount  deposited,  for  the  money  was  hers  by  virtue  of 
the  transaction.  It  was  deemed  that  the  bank  had  a  con- 
tract with  her  to  account  to  her  for  the  money,  and  not  to 
him.^  A  deposited  money  in  a  savings  bank  in  her  name 
as  "  trustee  for  B,"  but  retained  possession  of  the  deposit- 
book  until  her  death,  when  it  came  into  the  possession  of 
her  administrator.  At  times  she  drew  out  portions  of 
this  money,  as  well  as  other  money  she  had  there  on 
deposit  in  her  own  name.  This  was  decided  not  to  con- 
stitute a  valid  gift,  and  that  the  administrator  must  retain 
the  amount  of  the  deposit  as  part  of  A's  estate.^ 

1  Brabrook  v.  Boston,  etc.,  Bank,  104  Ma.«s.  228  ;  S.  C.  G  Am.  Rep.  222,  fol- 
lowed;  Clark  V.  Clark,  108  Mas-;.  522.  See  Brown  v.  Bishop,  5  Hawaiian,  54, 
It  would  have  been  otherwise  if  it  had  been  her  money :  Farrclly  v.  Ladd,  10 
Allen,  127  ;  Hunnewell  v.  Lane.  11   Met.  163. 

^  McCluskey  I'.  Provident  Institution,  103  Mass.  300. 

^Broderick  f.W^iltham  Savings  Bank,  109  Mass.  149. 

*  Sweeney  v.  Boston,  etc.,  Bank,  116  Mass.  384. 

^  Jewett  V.  Shattuck,  124  Mass.  590. 


CHAPTER  XIII. 

GIFT   OF    STOCK. 

342.  Stock  May  be  the  Subject  of  a  Gift.    350.  Keserving  Power  of  Revocation. 

343.  Failure  to  Transfer  Stock  on  Books     351.  Donee  Controlling  and  Receiving 

of  Corporation — American  Cases  Profits,  but  Not  the  Certiticate 

— Acceptance.  of  Stock — Opera  Box. 

344.  Transfer  Upon  Books  of  Corpora-     352.  Donor  Reserving  and  Exercising 

tion  Essential  to  Validity  of  Gift  Control  Over  Stock. 

— Trust — American  Cases.  353.  Recovery   of  Donor  from   Sick- 

345.  Transfer   Upon   Books  of  Corpora-  ness. 

tion  Essential  to  Validity  of  Gift     354.  Purchase  with  Notice  of  Assign- 
— English  Cases.  ment. 

346.  Subscribing  for  Stock  in  Another's     355.  Apportioning  Dividends. 

Name.  356.  Stock  Secretly  Given  to  a  Sub- 

347.  Gift  by   Survivorship  of  Stock  in  scriber  in  Order  to  Influence 

Two  or  More  Names.  Others  to  Subscribe. 

348.  Gift  by  Power  of  Attorney  or  Deed     357.  Directors   May  Not  Give  Away 

— Release.  the  Stock  of  their  Corporation. 

349.  Transfer   on   Books   but  Failure  to     358.  Corporators    May     Receive    Its 

Deliver  Certificate.  Stock  as  a  Gift. 

342.  Stock  May  be  the  Subject  of  a  Gift. — Stock 
or  shares  of  stock  of  a  corjioration  or  joint-stock  company 
is  the  subject  of  a  gift,  just  as  much  so  as  tangible  per- 
sonal property.  The  numerous  cases  cited  hereafter 
amply  sustain  this  assertion.  The  chief  difficulty  has 
been,  however,  to  sustain  transactions  as  gifts  because  of 
their  lack  of  completeness.  It  must  be  borne  in  mind 
that  a  certificate  of  stock  is  not  the  stock  itself,  it  is  only 
the  evidence  of  the  ownership  of  it.  Neither  is  the  entry 
upon  the  books  of  the  corporation  the  stock  ;  it  is  only 
evidence  of  the  ownership  of  the  stock,  usually  of  a  higher 
degree  than  the  certificate.  Stock  is,  in  fact,  "  incorporeal, 
j^ersonal  property,"  and  yet  still  the  subject  of  a  gift.^ 

'  In  re  Morgan,  104  N.  Y.  74  ;  sufficiency  of  mental  capacity  to  make  a  gift  of 

346 


Gift  of  Stock  347 

343.  Failure  to  Transfer  Stock  on  Books  of  Cor- 
poration— American  Cases — Acceptance. — A  number 
of  cases  have  arisen  with  reference  to  the  sufficiency  of  a 
gift  of  stock  which  has  not  been  transferred  upon  the 
books  of  the  company,  and  with  reference  to  the  right  of  the 
donee  to  compel  sucli  a  transfer.  In  other  words  whether 
a  gift  of  stock  not  transferred  upon  the  books  is  valid. 
Speaking  broadly,  it  may  be  said  that  such  a  transfer  is 
essential  in  England  to  make  the  gift  a  perfected  or  valid 
one,  but  it  is  not  essential  in  this  country.  The  charters 
of  the  corporations  or  their  by-laws  are  often  made  the 
turning  j^oints  in  decisions  of  this  character.  And  first 
we  will  refer  to  the  American  cases  which  we  now  pro- 
ceed to  discuss.  A  lady  was  the  owner  of  six  shares  of 
bank  stock,  standing  on  the  books  of  the  bank  in  her  own 
name.  Three  weeks  before  her  death,  while  in  good 
health,  she  and  the  donee  were  together  in  a  room,  when 
she  said  to  the  donee :  "  Hand  me  the  cloth  pocket  that 
you  will -find  in  that  drawer,"  pointing  to  a  drawer  in 
a  bureau  in  the  room.  On  receiving  it  she  opened  it  and 
from  a  pocket-book  therein  took  two  United  States 
treasury  notes  for  $50  each,  handed  them  to  the  donee, 
saying  :  "  Give  this  to  Jane  Carman  ;  the  houses  in  Ohio 
street  are  all  yours."  Jane  was  the  donor's  niece.  She 
then  closed  the  pocket-book,  put  it  back  in  the  pocket, 
and  said  to  the  donee  :  "  Here,  I  give  you  this  ;  I  make 
you  a  present  of  it ;  I  have  another,  and  want  you  to  wear 
them,  they  are  so  very  handy."  The  donee  took  the  cloth 
pocket  containing  the  pocket-book,  and  without  opening 
the  pocket,  kept  it  in  her  possession  until  the  donor  died. 
The  donee  was  ignorant  of  the  contents  of  the  pocket- 
stock  :  Van  Deusen  v.  Rowlev,  8  N.  Y.  358.  That  a  husband  may  make  a  gift  of 
stock  to  lus  wife,  see  Deming  i;.  Williams,  26  Conn.  226  ;  S.  C.  63  Am.  Dec.  3S6. 
Coupon  government  bonds :  Walsh  v.  Sexton,  55  Barb.  251. 


348  Gifts. 

book  until  after  tlie  donor's  death,  when  she  opened  it  and 
found  therein  a  certificate  for  tlie  six  shares  of  stock,  un- 
indorsed and  untransferred.  Upon  these  facts  the  court 
entered  a  decree  compelling  the  bank  to  transfer  the  stock 
to  the  donee.  The  court  considered  that  the  occasion  of 
making  the  gift  was  evidently  one  in  which  the  donor  felt 
disposed  to  make  gifts,  from  the  fact  of  the  gift  of  the 
treasury  notes ;  that  she  intended  something  more  than 
a  mere  gift  of  the  cloth  pocket,  because  of  the  fact  that 
she  deliberately  replaced  the  pocket-book  therein  before 
giving  it  to  her ;  that  it  must  be  presumed  she  knew  the 
stock  was  in  the  pocket-book,  especially  from  the  fact  that  it 
was  the  depository  of  other  valuable  articles ;  and  that  no 
reason  appeared  for  her  giving  the  pocket-book  with  the 
pocket  without  the  contents  of  the  former.  The  delivery 
of  the  certificate,  with  intent  to  make  it  a  gift,  was  a 
sufficient  delivery  of  the  stock  to  make  the  gift  a  valid 
one.^  Another  case  of  this  kind  arose  in  Connecticut. 
A  widower  uncle  of  seventy,  without  children,  promised 
his  niece  to  compensate  her  amply,  if  she  would  live  with 
him  until  his  death.  After  five  years  he  spoke  to  her  of 
intending  to  make  his  will  and  give  her  a  bequest,  and 
after  explaining  it,  asked  her  if  she  would  be  satisfied 
with  it,  and  she  said  she  would.  Afterward  he  told  her 
be  had  made  his  will,  which  he,  in  fact,  had  done,  and 
which  remained  unrevoked  at  his  death,  six  years 
later.  A  part  of  the  bequest  to  her  was  ten  shares  of 
stock  in  a  life  insurance  company,  which  was  all  the  donor 
owned.  At  the  time  he  spoke  to  her  about  the  bequest, 
he  told  her  he  would  do  still  more  for  her  from  time  to 
time.  A  year  later  he  handed  her  the  certificate  of  these 
ten  shares  of  stock,  saying,  "  I  give  this  to  you,"  which 

1  Allerton  r.  Lang,  10  Bosw.  362;  Cornell  v.  Cornell,  V2  Hun,  312  (a  gift  causa 
mortis);  Grymes  v.  Hune,  49  N.  Y.  17  ;  S.  C.  10  Am.  Rep.  313. 


Gift  of  Stock  349 

she  took  and  retained.  A  few  months  later  the  company 
issued  to  him,  as  the  owner  of  these  ten  shares,  forty  shares 
of  new  stock  created  out  of  its  surpkis,  and  he  delivered 
the  certificate  to  her,  saying,  "Tliis  insurance  stock  of 
yours  is  good  stock ;  they  give  forty  shares  for  ten  ;  it  is 
only  a  change  of  form,  that  is  all ;  I  paid  nothing  for  it." 
This  certificate  she  also  took  and  put  with  the  other. 
Under  these  facts  the  court  reached  the  conclusion  that 
the  certificates  were  delivered  with  intent  to  make  the 
stock  represented  by  them  a  gift,  that  they  were  so  ac- 
cepted, and  the  gift  a  valid  one  in  equity,  the  equitable 
title  so  vesting  in  the  donee  that  she  was  entitled  to  a  de- 
cree compelling  the  executors  of  the  donor  to  make  a 
formal  transfer  of  the  stock.  The  court  considered  that 
the  transaction  was  not  to  be  regarded  as  a  testamentary 
gift,  and  so  need  not  be  in  writing,  the  donor's  promise 
"to  do  more  for  her  from  time  to  time,"  showing  that 
whatever  more  he  intended  to  do  was  to  be  done  in  his 
lifetime.  Nor  was  the  transaction  void  under  the  statute 
of  frauds,  because  not  in  writing ;  the  delivery  of  the 
certificates  being  a  symbolical  delivery  of  the  stock, 
whereby  the  contract  became  executed,  the  court  not 
allowing,  in  accordance  with  the  rules  and  maxims  of 
equity,  the  donee  to  be  wronged  by  the  interposition  of 
the  statute  against  the  donee.  The  fact  that  the  cliarter 
and  by-laws  of  the  insurance  company  provided  that 
transfers  of  stock  should  only  be  made  at  its  oflfice,  by 
the  shareholder  or  his  attorney,  on  surrender  of  the  cer- 
tificate, was  deemed  not  to  defeat  the  gift ;  for  that  pro- 
vision related  only  to  the  legal  title  to  the  stock,  and  the 
donor  retaining  the  legal  title  became  a  trustee  for  the 
donee.  Nor  did  the  fact  that  the  will  gave  the  original 
ten  shares,  with  other  property,  which  was  to  be  accepted 
by  her  in  lieu  of  all  claims  on  the  testator,  and  the  fact 


350  Gifts. 

that  she  had  accepted  the  legacy,  affect  the  case ;  for  the 
stock  was  given  her  before  his  death,  and  therefore  con- 
stituted no  part  of  the  assets  of  his  estate,  and  her  right 
to  the  forty  shares  constituted  therefore  no  claim  on  the 
estate.  She  simply  took  what  was  already  her  own.^ 
These  cases  rest  upon  the  same  ground  upon  which  the 
validity  of  a  gift  of  a  chose  of  action,  which  has  not  been 
transferred  in  writing,  is  upheld.^ 

344.  Transfer  Upon  Books  of  Corporation  Essen- 
tial TO  Validity  of  Gift — Trust — American  Cases. 
— There  are  a  few  American  cases  in  which  it  is  held  that 
unless  the  stock  is  transferred  upon  the  books  of  the 
company  the  gift  is  not  valid.  This  is  particularly  true 
in  Maryland.  Thus  where  a  father  gave  to  his  child, 
indorsing  his  name  thereon,  a  certificate  of  bank  stock, 
which  contained  a  clause  that  the  shares  were  "  trans- 
ferable at  the  said  bank  only,  personally,  or  by  attor- 
ney," intending  thereby  to  make  him  a  present  of  the 
shares,  the  transaction  w^as  held  not  to  amount  to  a 
gift.  The  indorsement  was  not  deemed  to  be  the  equiva- 
lent of  a  powder  of  attorney.^  Of  this  case  it  may  be  said 
that  it  was  decided  at  an  early  day  (1830)  when  the  rule 
was  quite  firmly  established  that  a  chose  in  action  was  not 
the  subject  of  a  gift.  This  case  was  followed  in  one  quite 
recently  decided  in  the  same  State,  and  the  rule  clinched, 

iReed  v.  Copeland,  50  Conn.  472;  S.  C.  47  Am.  Rep.  663. 

"Walsh  V.  Pexton,  55  Barb.  251  ;  Commonwealth  r.  Crompton,  137  Pa.  St.  138. 
Where  an  alleged  donor  subscribed  in  tlie  name  of  the  alleged  donee  for  stock  in 
a  proposed  corporation,  had  the  same  entered  in  the  books  of  the  corporation  in 
the  donee's  name,  and  paid  the  assessments  thereon ;  it  was  hel  1  on  a  conveyance 
of  the  real  estate,  owned  by  the  corporation,  to  tlie  stockholders,  that  the  donee 
took  such  a  part  of  the  b.nd  as  his  stock  bore  to  the  whole  of  the  stock :  McDon- 
ald V.  Donaldson,  47  Fed.  Rep.  765.  That  the  evidence  of  a  gift  of  stock  must 
be  clear,  see  Morse  v.  Meston,  152  Mass.  5. 

3  Pennington  v.  Gittines,  2  Gill  &  J.  208  (1S30).  The  ca=e  follows  Tate  v.  Hil- 
bert  2  Ves.  Jr.  Ill ;  and  this  is  the  only  case  cited  in  the  opinion. 


Gift  of  Stock.  351 

that  an  actual  transfer  of  the  stock  on  the  books  of  the 
company  was  essential  to  the  validity  of  the  gift,  unless 
the  donor  declared,  after  the  indorsement  and  delivery  of 
the  certificate,  that  he  held  the  shares  in  trust  for  the 
donee,  in  which  event  equity  would  perhaps  seize  upon 
and  enforce  the  trust  for  the  benefit  of  the  donee.^ 

345.  Transfer  Upon  Books  of  Corporation  Essen- 
tial TO  Validity  of  Gift  —  English  Cases. — Tiie 
earliest  case  on  the  subject  of  a  gift  of  stock  in  England 
was  an  attempt  to  give  South  Sea  Annuities  by  a  mere 
delivery  of  a  receipt  for  them,  issued  by  the  company. 
The  gift  was  held  invalid.  This  was  in  1752."  The 
court,  however,  regarded  it  as  very  strong  evidence  of  a 
gift.  Where  the  gift  was  by  deed,  but  no  transfer  was 
made  on  the  company's  books,  the  court  was  inclined  to 
think  there  was  no  gift,  but  declined  to  take  any  steps 
holding  the  donor's  estate  liable,  until  the  donee  had  pro- 
ceeded at  law  against  the  company  and  compelled  it  to 
make  a  transfer  of  the  stock.^  If  the  gift  is  imjDcrfect  for 
want  of  transfer,  the  executor  of  the  donor  cannot  make 
it  valid  by  transferring  or  by  procuring  a  transfer  of  the 
stock.*  The  rule  requiring  a  transfer  upon  the  books  of 
the  company  to  make  a  gift  perfect  applies  to  a  gift  of 
railway  stock,^  and  to  bank  stock.^     The  courts  have  even 

1  Baltimore  Retort,  etc.,  Co.  v.  Mali,  65  Md.  93;  S.  C.  57  Amer.  Rep.  304. 

2  Ward  V.  Turner,  2  Ves.  Sr.  43L  See  Antrobiis  v.  Smiih,  12  Ves.  Jr.  39, 
where  tlie  receipt  had  never  been  delivered ;  and  the  decision  rested  on  this  fact. 

MVestv.  "West,  9  Ir.  L.  Rep.  121  (1SS2).  For  a  construction  of  "The  Com- 
panies Clauses  Consolidation  Act,"  of  1845,  concerning  the  transfer  of  stock 
given  away,  see  Copeland  v.  Northeastern  R.  W.  Co,  6  El.  &  Bl.  277,  and  Queen 
V.  Tlie  General  Cemetery,  6  El.  &  Bl.  415. 

*  Dillon  V.  Coppin,  4  Myl.  &  Craig,  647 ;  S.  C.  9  L.  J.  Ch.  (N.  S.)  87 ;  4  Jiir. 
427. 

s  Moore  v.  Moore,  18  L.  R.  Eq.  474  ;  S.  C  43  L.  J.  Ch.  617  ;  22  W.  R.  729 ;  30 
L.  T.  (N.  S.)  752;  Pethybridge  v.  Burrow,  53  L.  T.  Rep.  (N.  S.)  5;  Gason  v. 
Rich,  19  L.  R.  Ir.  391. 

« Lambert  v.  Overton,  13   W.  R.  227;  S.  C.  11   L.  T.   (N.  S.)  503;  Weale  v. 


352  Gifts. 

gone  so  far  as  to  hold  that  railway  stock  cannot  be  made  the 
subject  of  donatio  mortis  causa}  But  voluntary  assign- 
ment by  deed  of  the  assignor's  interest  in  stock  standing 
in  the  name  of  trustees,  upon  trust  for  him,  is  a  complete 
transfer  of  such  interest  as  between  the  donee  and  donor, 
although  no  notice  of  the  deed  was  given  to  the  trustees 
in  the  donor's  lifetime  ;  because  no  further  act  on  the 
part  of  the  donor  was  necessary  to  complete  the  gift.^ 
The  courts,  however,  drew  a  distinction,  though  very 
thin,  between  an  assignment  and  declaration  of  a 
trust.^  Thus  if  the  legal  owner  of  stock  merely  assigns 
it,  and  makes  no  transfer,  the  gift  is  bad  ;  but  if  he 
execute  a  declaration  of  trust,  equity  will  compel  its 
execution.* 

346.  SuBscRiBiis'G  FOR  Stock  tn  Another's  Name. — 
A  very  common  form  of  a  gift  of  stock  is  where  the  donor 
purchases  stock  and  directs  it  to  be  issued  in  the  name  of 
the  donee.  In  all  such  instances,  if  there  is  a  complete 
delivery,  the  presumption  of  a  gift  arises.  Thus,  a  hus- 
band subscribed  in  his  own  name  for  six  shares  of  bank 
stock,  and  when,  some  time  after  subscribing,  he  paid  the 
first  installment  thereon,  he  directed  the  cashier  to  make 
out  a  receipt  to  his  wife,  saying  that  the  shares  were  hers, 
and  that  if  he  spent  all  his  property  she  would  have 
something  to  live  upon  if  the  bank  should  prosper.  The 
receipt  was  made  out  in  accordance  with  the  directions, 
and  the  cashier  requested  him  to  take  another  share,  but 

Oliver,  17  Beav.  252  ;  Beech  i'.  Keep,  18  Beav.  285;  S.  C.  18  Jur.  971  ;  23  L.  J. 
Cli.  539,  consols  assigned. 

'  Moore  v.  Moore,  supra. 

2  Beech  v.  Keep,  18  Beav.  285 ;  S.  C.  18  Jur  971  ;  23  L.  J.  Ch.  539. 

'■^  Donaldson  v.  Donaldson,  Kay.  711 ;  S.  C.  23  L.  J.  Ch.  788. 

*  Bridget;.  Bridge,  16  Beav.  315;  S.  C.  16  Jur.  1031;  Beeden  or  Beecher  v. 
Major,  11  Jur.  (N.  S.)  537 ;  S.  C.  13  W.  R.  853  ;  12  L.  T.  (N.  S.)  562 ;  affirmed,  18 
L.  T.  (N.  S.)  554. 


Gift  of  Stock.  353 

he  declined,  saying  that  he  might,  however,  conclude  to 
take  some  for  himself;  and  if  he  did  he  should  want  more 
than  one ;  but  his  wife  did  not  want  any  more.  Two  and 
a  half  months  afterward,  he  went  with  his  wife  to  the 
bank  and  paid  the  last  installment ;  and,  by  his  direction, 
the  cashier  made  out  to  the  wife  a  certificate  of  six  shares, 
in  the  usual  form,  delivered  it  to  her,  and  took  her  receipt 
therefor.  The  payments  of  the  installments  were  entered 
by  the  cashier  on  the  stock  journal  as  made  by  the  wife. 
During  his  life  the  payments  of  the  dividends  were  made 
to  the  husband,  but  he  receipted  therefor  in  his  wife's 
name  for  the  first  one  and  in  his  own  name  for  the  subse- 
quent ones.  Ten  months  after  the  first  purchase,  he  pur- 
chased in  his  own  name  ten  shares  of  stock,  Avhich  he 
pledged  at  various  times  to  the  bank  as  collateral  security 
for  money  lent  him ;  but  he  never  so  pledged  his  wife's 
six  shares.  He  universally  requested  the  cashier  to  give 
him  the  dividends  on  the  two  sets  of  shares  in  distinct  and 
separate  sums,  and  sometimes,  when  so  receiving  them, 
asked  that  the  dividends  on  the  six  shares  be  paid  in  new 
bills  or  gold  pieces,  saying  it  would  please  his  wife  to 
have  them.  Under  these  facts  the  court  decided  that  the 
gift  was  a  perfected  one  and  the  donee  entitled  to  the  six 
shares.^  The  court  relied  upon  an  earlier  case  in  the  same 
State.  In  that  case  the  wife,  before  her  marriage,  held 
certain  shares  of  bank  stock.  After  the  marriage  her  hus- 
band received  the  dividends  accruing  on  the  stock  until 
the  bank  charter  expired.  At  the  expiration  of  the  char- 
ter the  stockholders  were  entitled  to  subscribe  a  portion 
of  the  amount  of  their  shares  in  a  new  bank.  The  hus- 
band subscribed  the  authorized  amount  in  her  name  and 
refused  to  receive  the  remainder  in  money,  saying  tliat  it 
was  not  his  but  hers.     At  his  death  his  executor  drew  out 

^  Adams  v.  Brackett,  5  Met.  280. 
23 


,354  Gifts. 

this  remainder  and  the  dividends  of  profits  on  the  new 
shares,  and  also  a  sum  payable  on  account  of  the  reduc- 
tion of  the  capital  of  the  bank ;  but  it  was  held  that  she 
was  entitled  to  recover  from  the  executor  all  the  sums  so 
received,  with  interest.  It  must  be  observed  that  the 
<3ommon  law  gave  to  him,  by  virtue  of  the  marriage, 
all  the  personal  estate  owned  by  the  wife  at  the  marriage.^ 
•One  S.  purchased  and  paid  for  thirty  shares  of  stock,  at 
the  time  giving  the  treasurer  directions  to  set  it  aside  in 
tlie  name  of  Y.,  and  saying  that  he  would  let  him  know 
whether  to  deliver  it  to  Y.,  and  what  to  do  with  it  at  some 
future  time.  The  receij^t  issued  by  the  treasurer  con- 
tained a  statement  that  he  had  received  the  purchase- 
price  from  Y.  The  receipt  came  into  Y.'s  possession,  but 
it  did  not  appear  how  he  received  it.  Y.  had  married  S.'s 
niece,  lived  in  his  family,  and  had  adopted  a  child  in 
whom  S.  took  a  special  interest.  Some  time  afterward  S. 
told  Y.  that  he  could  only  make  the  shares  twenty -seven, 
and  as  the  receipt  was  made  out  to  him  he  would  want  an 
order  for  three  shares,  and  Y.  at  once  gave  him  an  order 
on  the  company,  directing  a  transfer  of  these  three  shares 
BB  S.  mio;ht  direct.  No  certificate  of  the  stock  was  ever 
issued.  S.  told  Y.  to  go  to  the  office  for  the  dividends, 
when  they  had  been  declared,  that  he  had  them  made  out 
in  his  (Y.'s)  name,  that  they  would  help  support  the 
child,  and  that  they  would  be  paid  to  him  by  his  (S.'s) 
direction  until  his  (Y.'s)  death.  After  the  stock  had  been 
placed  in  Y.'s  name,  his  wife  died.  He  married  again, 
but  his  wife  did  not  care  for  the  child.  The  court  ad- 
mitted that  there  had  been  a  sufficient  delivery  of  the 
stock,  if  S.  had  ever  had  any  intention  to  make  it  a  gift  ; 
but  that  intention,  as  drawn  from  the  above  recited  facts, 
was  entirely  absent.     The  court  drew  the  conclusion  from 

^  Stanwood  i'.  Stanwood,  17  Mass.  57. 


Gift  of  Stock.  355 

the  facts  that  he  did  not  intend  to  vest  the  title  in  Y.  for 
liimself,  but  did  intend  to  create  a  trust  for  the  child  ; 
that  he  did  not  intend  that  Y.  should  control  the  shares, 
but  that  the  treasurer  should  retain  them,  subject  to  his 
(S.'s)  control.  Y.  drew  the  dividends  simply  for  the  sup- 
port  of  the  child.  "  It  may  be  true,  in  a  legal  sense," 
said  the  court,  "  that  it  was  not  necessary  for  Youmans  to 
have  the  certificate  of  stock  in  order  to  constitute  him  a 
stockholder,  but  among  business  men  the  certificate  of 
stock  is  regarded  as  rej)resenting  the  stock  and  the  title 
thereto.  Such  is  the  common  understanding,  and  Sharp 
undoubtedly  supposed  when  he  retained  the  certificate 
that  the  stock  remained  subject  to  his  control.  The  fact 
that  Youmans  did  not,  during  his  life,  nearly  seven  years, 
call  for  the  certificate  of  stock  shows  quite  clearly  that  he 
did  not  regard  himself  as  the  owner  of  the  stock ;  and 
that  Sharp  claimed  to  have  the  control  and  disposition 
thereof  appears  from  the  fact  that  he  assumed  to  dispose 
of  three  shares  thereof,  after  the  certificate  for  the  thirty 
shares  had  been  executed.  It  is  true  he  applied  to 
Youmans  for  an  order  to  transfer  these  three  shares,  but 
that  was  merely  a  matter  of  form,  because  Youmans  held 
the  receipt  and  the  shares  appeared  upon  the  books  of  the 
company  in  his  name.  That  was  a  matter  of  book-kee])- 
ing.  Therefore  I  conclude  that  there  was  no  delivery  of 
the  stock,  within  the  meaning  of  the  law,  to  Youmans, 
with  intent  to  vest  the  title  in  him  and  give  him  the  con- 
trol thereof." ' 

347.  Gift  by  Survivorship  of  Stock  in  Two  or 
More  Names. — If  stock  is  purchased  in  the  joint  names 

•  Jackson  v.  Twenty  third  Street  R.  W.  Co..  SS  N.  Y.  520  ;  reversing  1')  J.  & 
S.  85.  Two  out  of  six  judges  dissented.  Upon  the  facts  given  in  the  report  of 
the  decision  in  the  lower  court,  the  case  was  rightly  decided  ;  but  it  wouM  seem 
fiom  the  report  of  the  case  as  decided  in  the  appellate  court  that  all  the  facts 
were  not  given  in  the  report  of  the  decision  below. 


356  Gifts. 

of  the  donor  and  donee,  the  latter  will  take  it  on  the  death 
of  the  donor,  if  thereby  the  donor  intended  to  make  gift 
of  it.  Thus  a  husband  transferred  certain  four  and  five 
per  cent,  stocks,  which  was  the  whole  of  his  funded  j)rop- 
erty,  into  the  joint  names  of  himself  and  wife.  Then  by 
his  will  he  bequeathed  all  his  funded  property  to  trustees, 
in  trust  for  his  wife  for  her  life,  and,  after  her  decease,  in 
trust  to  pay  certain  specified  legacies  of  four  per  cent, 
stock,  amounting,  within  £50,  to  the  stock  of  that  descrip- 
tion which  he  had  so  transferred.  The  remainder  of  his 
estate  he  gave  to  other  persons.  Afterward  he  purchased 
farther  sums  of  five  per  cent,  stock  in  the  joint  names  of 
himself  and  wife.  He  died  in  her  lifetime,  having  no 
stock  except  that  mentioned  above,  without  which  his 
property  was  not  sufficient  to  pay  his  legacies.  It  was 
held  that  she  was  entitled  to  the  four  and  five  per  cents,, 
and  that  the  bequest  of  the  testator's  funded  property  was 
not  sufficiently  specific  to  make  her  elect  between  the 
stock  and  the  benefits  which  she  took  under  the  will,  in 
certain  parts  of  the  testator's  projierty.^  The  relation,  in 
such  a  case,  of  husband  and  wife  raises  the  presumption 
of  a  gift ;  ^  and  the  same  presumption,  in  fact,  is  raised 
where  no  relationship  whatever  exists.^  Where  a  widow 
in  her  eighty -sixth  year  caused  a  sum  of  £6,000  consols 
to  be  transferred  into  the  joint  names  of  herself  and  god- 
son, in  whose  welfare  she  took  great  interest ;  and  two 
years  after  remarried,  the  court  declined  to  compel  a  re- 
transfer  to  her  upon  her  application  therefor  of  the  con- 
sols, the  original  transfer  not  being  for  the  purpose  of 
creating  a  trust.*     But  where  an  alleged  donor   directed 

1  Dummer  v.  Pitcher,  5  Sims.  35  ;  affirmed,  2  Mylne  &  Keen,  262. 
^Ib. ;  Rider  v.  Kidder,  10  Ves.  360;  Lorimer  v.  Lorimer,  10  Ves.  367,  no^e; 
Deacon  v.  Colquhoun,  2  Drew.  21. 
'George  v.  Howard,  7  Price,  661. 
^Standing  v.  Bowring,  27  L.  E.  Ch.  Div.  341 ;  S.  C.  54  L.  J.  Ch.  Div.  10;  51 


Gift  of  Stock.  2>ol 

his  agents  to  invest  part  of  his  balance  in  their  hands,  in 
the  purchase  of  stock  in  the  names  of  himself  and  wife, 
in  trust  for  his  infant  son ;  and  they  made  the  purchase 
as  directed,  except  without  having  the  trust  declared  or 
expressed,  of  which  they  informed  him  and  their  reason 
for  not  doing  so — because  the  bank  objected  to  trust- 
accounts  appearing  on  their  books — and  he  allowed  the 
stock  to  remain  without  any  trust  being  declared,  and  re- 
ceived the  dividends  of  it  down  to  his  death ;  it  was  held 
that  neither  his  son  nor  his  wife  (who  survived  him)  Avas 
entitled  to  the  stock,  there  being  no  valid  gift.^  But 
where  a  testator,  having  first  made  a  will  in  favor  of  a 
person  with  whom  he  was  cohabiting,  afterward  trans- 
ferred stock  into  the  joint  names  of  himself  and  of  that 
person,  and  subsequently  to  this  transfer  revoked  his  first 
Avill  and  made  another  in  favor  of  a  third  person,  a 
daughter  of  the  original  legatee,  to  whom  by  the  first 
will  nothing  was  given ;  it  was  held  that  there  was  no 
resulting  trust  for  the  testator  in  the  stock,  and  the  joint 
transferee  was  entitled  to  it  by  survivorship.^ 

348.  Gift  by  Power  of  Attorney  or  Deed — Re- 
lease.— A  gift  of  stock  may  be  made  by  deed  or  a  power 
of  attorney,  if  the  charter  or  by-laws  of  the  corporation 
does  not  expressly  prohibit  it.  But  in  all  such  instances 
a  delivery  of  the  deed  or  power  of  attorney  is  essential. 
Thus  where  a  father  executed  a  deed  poll  conveying  to 
his  daughter  certain  shares  in  the  East  India  and  Globe 
Insurance  companies,  to  hold  for  her  separate  use,  and  in 
case  her  husband  survived  her,  then  with  power  for   him 

L.  T.  (N.  S.)  591 ;  33  W.  R.  79  ;  Garrick  v.  Tayler,  7  Jur.  (N.  S.)  1174;  S.  C.  10 
AV.  R.  49 ;  4  L.  T.  (N.  S.)  404;  31  L.  J.  Ch.  6S ;  affirming  7  Jur.  (N.  S.)  116 ;  30 
L.  J.  Ch.  211 ;  9  W.  R.  181 ;  3  L.  T.  (N.  S.)  400 ;  29  Beav.  79  ;  48  G.,  F.  &  J.  169. 

*  Smith  V.  Warde,  15  Sim.  56. 

'Turnbridge  v.  Care,  19  W.  R.  1047 ;  S.  C.  25  L.  T.  (N.  S.)  150. 


358  Gifts. 

to  receive  the  dividends  during  his  life,  and  after  the 
death  of  the  survivor  of  them,  then  for  the  benefit  of  tlieir 
children  equally,  which  deed  was  found  at  his  death,  two 
months  after  its  execution,  among  the  donor's  papers,  in 
an  envelope  marked  "  to  be  given  to  "  the  donee  "  at  my 
death,  and  immediately;"  it  was  decided  that  there  was 
no  valid  gift  of  the  shares  of  stock.  The  deed  professed 
to  grant,  sell,  and  assign  the  stock  to  the  donee.  It  was 
shown  that  a  mere  assignment  would  not  enable  the  as- 
signee to  receive  or  recover  either  the  stock  or  the  divi- 
dends. It  was  also  decided  that  the  donor  had  not  made 
himself  a  trustee.  "  So  far,"  said  the  court,  "  from  mak- 
ing himself  a  trustee  of  the  stock,  he  states,  upon  the  in- 
strument, his  intention  of  perfecting  the  gift  by  transfer 
of  the  stock,  and  endeavors  to  provide  the  means  by  which 
the  grantee  may  obtain  the  legal  title."  This  the  court 
considered  that  he  had  not  done.^  But  where  the  donor 
in  her  last  sickness  wrote  from  Ireland  to  her  sister  in 
New  York,  making  a  disposition  of  fifty  shares  of  insur- 
ance stock  to  certain  persons  named,  and  also  executed  to 
her  a  power  of  attorney  authorizing  her  to  take  all  need- 
ful measures  to  effect  a  transfer  of  the  stock  to  the  donees  ; 
and  the  power  having  been  executed,  part  before  the 
donor's  death  and  part  after,  by  the  surrender  of  the 
scrip  to  the  company,  and  the  issue  of  the  shares  to  the 
donee  mentioned  in  the  letter,  the  gifts  were  upheld.^  So 
where  no  certificates  had  ever  been  issued,  a  delivery  of  a 
power  of  attorney  to  a  third  person,  with  oral  directions 
to  have  the  stock  placed  in  certain  shares  in  the  names  of 
the  donees,  it  was  deemed  a  good  gift,  even  though  the 
power  of  attorney  was  returned  to  the  room  of  the  donor 

1  Dillon  V.  Coppin,  4  Mylne  &  Craig,  C47  ;  S.  C.  9  L.  J.  (N.  S.)  Ch.  87 ;  4  Jur. 
427. 

-  Duigau  V.  McCorraack,  53  How.  Pr.  411. 


Gift  of  Stock.  .  359 

for  safe-keeping.^  And  where  a  donor,  then  in  extremis, 
executed  the  ordinary  bank  power  of  attorney,  and  de- 
livered it  to  her  sister  B,  whereby  the  latter  was  em- 
powered to  transfer  into  her  own  name  government  stock 
standing  in  the  name  of  the  donor  ;  and  the  transfer  was 
not  made  until  after  the  donor's  death,  the  gift  was  de- 
cided valid  and  effectual  in  B's  favor."  So  where  the  in- 
come from  stock  was  released,  bv  a  letter  addressed  to  the 
trustee  in  whose  name  the  stock  stood,  the  release  was 
held  valid  after  the  donor's  deatli.^  But  even  though 
the  donee  may  receive  a  power  of  attorney  empowering 
him  to  make  a  transfer  of  the  stock,  it  is  not  conclusive 
that  a  gift  was  intended.  Thus  the  owner  of  insurance 
stock  appointed  A  his  "  attorney  to  receive  and  assign 
any  scrip  or  dividends,  or  belonghig  to  "  him,  in  the  in- 
surance company,  "  and  to  receive  the  interest  thereon." 
A,  by  virtue  of  this  instrument,  drew  the  subsequent 
dividend,  deducting  therefrom  the  amount  of  interest 
owed  by  the  alleged  donor  to  the  company.  Two  months 
after  the  execution  of  the  power,  he  died.  Nearly  a  month 
later  A,  upon  the  transfer  books  of  the  company,  assigned 
this  stock  from  himself,  as  executor,  to  himself  indi- 
vidually. Afterward,  for  years,  he  drew  the  dividends, 
and  then  assis-ned  the  stock  to  B.  During  his  last  ill- 
ness,  either  before  or  after  the  execution  of  the  power,  he 
said  to  a  witness,  after  looking  over  his  papers  and  taking 
out  his  scrip,  that  he  was  going  to  give  that  to  A,  A  not 
then  being  present.  At  another  time  he  said  to  the  same 
witness,  after  A,  who  was  his  son,  had  come  home,  that  he 
had  given   A  that  scrip.     A   was  his  father's  executor, 

•  Caiimont  v.  Eosert,  3G  Hun,  3S2. 

2  Kiddill  V.  Farnell,  3  Jur.  (N.  S.)  786 ;  S.  C.  26  L.  J.  Cb.  818.  Contra,  where 
not  acted  upon  until  after  the  death  of  the  donor:  Peckham  v.  Taylor,  31  Beav. 
250. 

•''Hooper  v.  Goodwin,  1  Swanst.  486. 


360  Gifts. 

and  testified  that  after  his  father's  death,  he  had  posses- 
sion of  the  stock ;  but  was  not  permitted  to  testify  that 
his  father  had  transferred  it  to  him,  nor  to  state  that  at 
the  time  of  the  transfer,  he  gave  it  to  him,  because  of  his 
incompetency  as  a  witness.  This  was  all  the  evidence. 
The  court  decided  that  a  gift  of  the  stock  was  not  shown, 
the  burden  of  showing  such  being  ujDon  A  or  his  assignee. 
The  declarations  of  the  alleged  donor  was  deemed  in- 
sufficient to  show  a  gift,  because  they  were  only  a  con- 
clusion from  facts  necessary  to  make  a  gift  complete,  and 
not  the  facts  themselves ;  nor  could  a  delivery  be  proved 
by  the  subseqent  declarations  of  the  donor.  This,  coupled 
with  the  fact  that  the  witness  thought  she  saw  the  scrip  in 
the  alleged  donor's  possession  after  the  execution  of  the 
power,  was  held  not  to  show  a  delivery  as  a  gift.  It  was 
also  held  that  the  possession  of  the  stock,  held  by  A,  as 
explained  by  the  power  of  attorney,  was  the  possession  of 
an  attorney  for  his  principal,  its  terms  importing  a  pur- 
pose to  empower  A  to  do  acts  relative  thereto  for  the  con- 
venience of  his  father.  In  the  generality  of  its  power  it 
did  not  intend  to  empower  A  to  assign  to  himself  or  to 
receive  for  himself  the  proceeds  of  an  assignment  to 
another ;  and  the  presumption  arising  from  this  form  of 
the  power  was  that  A's  acts  under  it  were  the  acts  of  the 
princijDal,  his  father,  as  still  the  owner  of  the  stock.  Pay- 
ing interest  out  of  the  dividends  on  his  father's  mortgage 
was  deemed  to  imply  that  his  father  still  controlled  the 
proceeds  of  the  stock ;  and  his  assignment  to  himself  as 
executor,  was  also  deemed  an  admission  that  his  father 
up  to  his  death  was  the  actual  owner,  although  the  com- 
pany requested  him  to  make  it  in  that  form.^ 

349.  Transfer  on  Books  but  Failure  to  Deliver 
THE  Certificate. — If  a  transfer  has  been  made  by  the 

» Smith  V.  Barnet,  8  Stew.  (N.  J.)  Eq.  314  ;  affirming  7  lb.  219. 


Gift  of  Stock.  361 

donor  to  the  donee,  on  the  books  of  the  corporation, 
accompanied  with  the  other  requisites  of  a  gift,  but  the 
certificate  thereof,  in  his  own  name,  be  retained  by  the  do- 
nor, the  gift  is  still  valid.^  Causing  such  a  transfer  to  be 
made  and  certificate  issued  in  the  name  of  but  not  deliv- 
ered to  the  donee  is  a  valid  gift,  even  though  the  donee 
have  no  knowledge  of  such  transfer  until  after  the  death 
of  the  donor.  **' Transferring  the  shares  to  her  [the  do- 
nee]," said  the  court,  "  upon  the  books  of  the  company  is 
putting  her  in  complete  possession  of  the  thing  assigned, 
and  clothing  her  wdtli  the  complete  legal  title.  It  stands 
in  the  place  of  a  delivery.  Such  an  act  performs  pre- 
cisely the  office  which  an  actual  delivery  would  jierform 
if  it  were  a  chattel.  It  is  as  comj)lete  a  delivery  as  the 
nature  of  the  thing  will  admit  of.  There  can  be  no 
clearer  evidence  of  a  design  to  part  with  the  right  of 
property  in  favor  of  another  than  an  absolute  transfer  of 
the  legal  title  to  her  for  her  own  use.  Retaining  in  his 
possession  the  certificates  which  are  in  her  name,  and 
which  he  could  not  use  without  her  consent,  cannot  undo 
or  qualify  the  decisive  ownership  with  which  he  had  in- 
vested her  by  the  actual  transfer  to  her  on  the  books  of 
the  company.  The  best  evidence  of  her  ownership  is  the 
transfer  on  the  books  of  the  company.  The  certificates 
were  but  secondary  evidence  of  her  ownership,  and 
only  useful  for  purposes  of  transfer.  They  were  noth- 
ing more  than  the  official  declaration  by  the  company 
of  what  already  appeared  on  their  books.  There  was 
here  no  locus  posnitentice.  He  could  not  have  used  the 
certificates,  nor  could  any  one  have  used  them  except 
the  donee."  ^ 

'  Francis  v.  New  York,  etc.,  Elevated  R.  R.  Co.,  17  Abb.  N.  C.  1. 
^  Roberts'  Appeal,  85  Pa.  St.  84.   See  a  transfer  somewhat  similar :  Delamater's 
Estate,  1  Whart.  362. 


362  Gifis. 

350.  Keservixg  Power  of  Revocation. — A  donor 
of  stock  may  reserve  a  right  to  revoke  the  gift  or  to 
modify  it.  Thus  the  owner  of  stock  in  a  railroad  deliv- 
ered the  certificate,  indorsed  in  blank,  upon  trust  to  j^ay 
the  income  to  himself  for  life,  and  at  his  death  to  transfer 
such  stock  to  certain  charitable  objects,  reserving  the  right 
to  modify  the  uses  or  revoke  the  trust.  The  trustee  alone 
signed  a  memorandum  to  that  effect.  The  reservation  was 
held  to  be  valid,  and  it  was  said  that  the  gift  would  also 
have  been  valid  if  it  had  not  been  revoked.^ 

351.  Donee  Controlling  and  Receiving  Profits, 
BUT  Not  the  Certificate  of  Stock — Opera  Box. — 
It  is  altogether  possible  for  the  donee  to  control  the  stock, 
receive  all  the  benefits  of  ownership,  believe  that  he  is  the 
owner,  and  yet  not  in  fact  be  such  owner.  Thus  a  hus- 
band subscribed,  paid  for  them,  and  took  a  certificate  in 
his  own  name  for  four  shares  of  stock  in  an  opera  house. 
The  subscription  entitled  him  to  four  seats  in  an  opera 
box  in  the  house.  AVhen  the  box  was  allotted  a  ticket 
was  given  to  the  owner,  the  possession  of  which  entitled 
the  holder  to  occupy  the  box  and  seats,  under  the  regula- 
tions of  the  corporation.  When  he  purchased  the  box 
(or  shares  of  stock)  he  said  that  it  was  for  his  wife,  and 
he  so  told  her.  She  asked  him  what  evidence  she  had  to 
show  that  it  was  hers,  and  he  delivered  the  ticket  to  her 
and  said  to  her  that  it  was  not  necessary  that  she  should 
have  any  evidence  of  ownership ;  that  it  was  hers  in  fact. 
She,  with  other  members  of  the  family,  occuj)ied  it ;  and 
at  one  time  she  rented  it,  and  received  the  rent  herself, 
with  the  knowledge  and  approbation  of  her  husband. 
The  certificates  of  stock  were  never  transferred  to  her, 
but  were  retained  by  her  husband.     Under  the  regula- 

» Stone  V.  Hackett,  12  Gray,  227. 


Gift  of  Stock.  363 

tions  of  the  cori^oration,  in  order  to  transfer  the  shares  of 
stock,  it  was  necessary  to  surrender  the  certificates,  and 
take  new  ones,  in  the  name  of  the  transferee.  After 
his  death  she  occupied  it.  Upon  these  facts,  the  court 
reached  the  conckision  that  there  was  no  valid  gift, 
saying  that  the  evidence  showed  that  "  the  title  to  the 
box  consisted  of  four  certificates  taken,  and  remainins: 
in  the  name  of  Mr.  Stevens  [the  husband],  and  that 
the  tickets  were  the  only  evidence  of  the  right  to 
occupy,  which  were  delivered  to  Mrs.  Stevens.  The 
expression  of  an  intention  to  give  the  box  to  Mrs.  Stevens 
did  not  consummate  the  gift,  but  it  was  necessary  either 
to  deliver  the  subject  of  the  gift,  or  some  evidence  of  title. 
It  is  quite  evident  that  if  Mrs.  Stevens,  on  the  faith  of  the 
four  tickets  and  the  allegation  of  ownership,  had  trans- 
ferred the  box  in  question  to  a  third  party,  Mr.  Stevens 
might  have  taken  proceedings  to  eject  the  purchaser  and 
to  resume  his  authority  over  it.  It  seems  to  me  equally 
clear  that  Mr.  Stevens  in  stating  that  the  box  was  his 
wife's,  in  view  of  his  retention  of  the  evidence  of  the 
title,  did  not  show  any  intention  to  be  divested  of  his 
title  to,  or  control  over  it."  ^ 

352.  DoxoR  Reseeving  axd  Exercisixg  Coxtrol 
Over  Stock. — A  donor  may  so  reserve  or  exercise  con- 
trol over  the  stock  and  dividends  as  to  defeat  the  gift. 
Thus,  a  father  transferred  bank  shares  to  himself  as  trus- 
tee for  his  two  daugliters,  but  retained  control  over  them, 
appropriated  the  dividends  to  himself,  and  neither  daugli- 
ter  ever  knew  that  the  transfers  had  been  made  until  after 
his  death.  This  was  held  not  to  make  a  gift,  tlie  court 
saying,  "  There  was  no  act  on   his  part  delivering  the 

'  Stevens  v.  Stevens,  2  Redf.  265.     The  wife  was  charged  by  the  court  with  the 
rent  and  use  of  the  box  after  her  husband's  death. 


364  Gifts. 

property  out  of  his  possession,  indicating  an  intent  and 
]3urpose  to  pass  the  title  to  his  daughters ;  and  he  did  not 
so,  deal  with  it  as  to  deprive  himself  of  the  ownership  or 
to  change  his  right  in  this  respect."  ^ 

353.  Kecovery  of  Donor  from  Sickness. — If  a  donor 
in  extreme  sickness  makes  a  gift  of  stock,  by  making  the 
proper  transfer,  and  then  recovers,  the  donee  will  be  held 
as  a  trustee  for  the  donor,  for  the  recovery  revokes  the 
gift ;  especially  is  this  true  if  the  donee  took  it  with  the 
distinct  understanding  that  the  gift  was  conditioned  on 
the  donor  not  recovering  from  his  present  sickness.^ 

354.  Purchase  with  Notice  of  Assignment. — A  exe- 
cuted an  assignment  and  power  of  attorney,  indorsed  upon 
a  certificate  of  shares  of  stock,  and  made  a  gift  of  the 
stock  to  B  by  delivery  of  the  certificate.  A  afterward, 
for  a  valuable  consideration,  executed  an  assignment  of 
the  same  stock  to  C,  and  caused  the  same  to  be  transferred 
to  C  upon  the  company's  books.  By  the  terms  of  the 
certificate,  the  stock  was  transferable  only  upon  the  books 
of  the  company  upon  surrender  of  the  certificate.  C  knew 
of  the  assignment  to  B,  being  a  witness  thereto  as  well  as 
an  ofi[icer  of  the  company.  After  the  transfer  to  C,  B  pre- 
sented his  certificate  and  demanded  a  transfer  of  the  stock 
to  himself,  and,  on  refusal  of  the  company  to  do  so, 
brought  an  action  to  compel  a  transfer,  which  he  success- 
fully maintained,  the  court  holding  that  the  first  transfer 
was  not  a  valid  excuse  for  the  refusal,  for  it  was  the  com- 
pany's duty  to  resist  any  transfer  without  the  production 
and  surrender  of  the  certificate  ;  and  the  fact  that  the  first 
assignment  was  without  consideration  was  immaterial,  as 
the  delivery  of  the  certificate  with  the  assignment,  as  be- 

^Curarnings  v.  Bramhall,  120  Mass.  552. 
^Stauiland  v.  Willott,  3  MacN.  &  G.  664. 


Gift  of  Stock  365 

tween  A  and  B,  passed  tlie  entire  legal  and  equitable  title 
to  the  stock.^ 

355.  AppoRTiomNG  Dividends. — The  dividends  of 
certain  bank  stock  were  given  for  life  to  the  donee,  for 
his  maintenance,  "  to  be  paid  half-yearly,  as  they  shall  be 
received  from  the  bank."  The  donee  died  a  few  days  be- 
fore a  semi-annual  dividend  was  declared,  and  it  was  de- 
creed that  the  dividends  should  be  apportioned,  and  the 
amount  which  had  accrued  at  the  donee's  death  should  be 
paid  to  his  executor.^ 

356.  Stock  Secretly  Given  to  a  Subscriber  in 
Order  to  Influence  Others  to  Subscribe. — It  is  an 
ordinary  device  of  the  promoters  of  an  enterprise  to  offer 
inducements  to  a  person  whose  name  will  carry  influence 
with  and  induce  others  to  subscribe  for  shares  of  stock  in 
the  enterprise  to  make  a  secret  donation  to  him  of  certain 
shares  of  stock,  or  sell  it  to  him  at  a  reduced  price  if  he 
will  subscribe  for  stock  in  the  concern.  Often  it  is  under- 
stood that  he  will  not  be  required  to  ]}^j  for  any  of  the 
stock  subscribed  for,  it  being  a  pure  gift.  Such  a  trans- 
action is  a  fraud  upon  the  other  subscribers,  and  such  pre- 
ferred subscriber  cannot  enforce  the  agreement  if  the  com- 
pany declines  to  do  so.  And  where  there  are  two  or  more 
such  schemes  proposed,  but  only  one  carried  out,  they  may 
be  so  connected  as  to  render  the  one  actually  executed 
void,  although  no  new  papers  are  executed  in  the  last  one.^ 

1  Cushman  v.  Thayer  Manuf.  Co.,  76  N.  Y.  365 ;  S.  C.  32  Am.  Rep.  315  ;  affirming 
7  Daly,  330. 

'jEj;  parte  Rutledge,  Harper  Eq.  (S.  C.)  65. 

'Nickerson  v.  English,  142  Mass.  267;  White  Mountains  R.  R.  Co.  v.  Eastman, 
34  N.  H.  124;  Melvin  v.  Lamar  Ins.  Co.,  80  111.  446;  S.  C.  22  Am.  Rep.  19i»; 
Miller  v.  Hanover,  etc.,  R.  R.  Co.,  87  Pa.  St.  95 ;  S.  C.  30  Am.  Rep.  349  ;  Henry 
t'.  Vermillion,  etc.,  R.  R.  Co.,  17  Ohio,  1S7;  Robinson  v.  Pittsburgh,  etc.,  R.  R.  Co., 
32  Pa.  St.  334 ;  S.  C.  72  Am.  Dec.  792 ;  Harvey  v.  Hunt,  119  Mass.  279 ;  Stanhope's 
Case,  1  L.  R.  Ch.  161. 


366  Gifts. 

357.  DiRECTOES  May  Not  Give  Away  the  Stock 
OF  Their  Corporation. — The  directors  of  a  corporation 
or  company  may  not  give  away  the  stock  of  their  corpo- 
ration or  company.  The  capital  stock  of  a  moneyed  cor- 
jDoration,  at  least,  is  a  fund  for  the  payment  of  its  debts. 
"  It  is  a  trust  fund,  of  which  the  directors  are  trustees.  It 
is  a  trust  to  be  managed  for  the  benefit  of  its  shareholders 
during;  its  life,  and  for  the  benefit  of  its  creditors  in  the 
event  of  its  dissolution."  It  is  tlierefore  held  in  this  country 
that  the  directors  cannot  give  away  the  stock,  nor  release  a 
subscriber  from  his  obligation  to  pay  in  full  for  the  stock.^ 

358.  Corporation  May  Receive  Its  Stock  as  a 
Gift. — It  is  competent  to  make  a  bequest  of  its  stock  to 
a  corporation "  and  there  is  no  reason  why  a  gift  mortis 
causa  or  intei'  vivos  of  such  stock  may  not  also  be  made." 
In  case  of  a  gift,  the  rules  announced  in  this  chapter 
"with  reference  to  a  gift  of  stock  between  individuals  apply. 
But  ^^robably  the  delivery  of  the  certificate  to  the  cor- 
poration, with  intent  to  make  a  gift  of  the  stock,  would 
in  all  instances  amount  to  a  gift,  unless  the  charter  or  by- 
laws required  the  holder  in  person  to  make  the  transfer  on 
the  books  of  the  comj^any  in  order  to  make  a  transfer 
valid,  and  even  then,  in  some  States,  the  delivery  of  the 
certificate  would  be  a  good  transfer  in  equity.  •  Usually 
when  the  holder  of  a  certificate  has  done  all  within  his 
power  to  secure  a  transfer  from  himself,  a  transfer  is  com- 
pleted ;  and  the  lack  of  diligence,  or  failure  to  act,  of  the 
corporation,  will  not  be  permitted  to  defeat  his  intentions. 

^  Upton  V.  Tribilcock,  91  U.  S.  45 ;  Van  Cott  v.  Van  Brnnt,  2  Abb.  N.  C.  2S3 ; 
S.  C.  82  X.  Y.  535  ;  Foreman  v.  Bigelow,  4  Cliff.  508 ;  Guff  n  Flesher,  33  Ohio  St. 
107  ;  Union  Mutual  Life  Ins.  Co.  v.  Frean  Stone  Mf.  Co.,  97  111.  537  ;  S.  C.  37  Am. 
Rep.  129  ;  Sawyer  v.  Hoag,  17  Wall.  610 ;  Zirkel  v.  Joliet  Opera  House  Co.,  79  111. 
334 ;  Osgood  v-  King,  42  la.  478.  See  Central  Trust  Co.  v.  New  York  City,  etc., 
R.  R.  Co.,  18  Abb.  N.  C  381. 

2  Rivanna  Navigation  Co.  r.  Dawsons,  3  Gratt.  19  ;  S.  C.  4(5  Am.  Dec.  183. 

'  Lake  Superior  Iron  Co.  v.  Drexel,  90  N.  Y.  87,  assumed  as  valid. 


CHAPTER  XIV. 


GIFT  OF    REAL    ESTATE. 


359.  Introduction.  378. 

Gift  by  Deed. 

360.  Purcliase  by   Donor   and   Convey- 

ance   to    Donee     by    Vendor —    379. 
Specific        Performance  —  Pur- 
chase-Money Mortgage.  380. 

361.  Husband   to    Wife— Wife   to  Hus- 

band. 

362.  Courts  will  Not  Enforce  a  Volun-     381. 

tary  Deed — Delivery  of  Deed. 
353.  Reforming   a     Voluntary    Deed —    382. 
Restoring  Lost  Deed. 

364.  Gift  in  Writing  Enforced  Between 

Blood  Relations. 

365.  Donee  May  Maintain  an  Action  for    383, 

Possession  Under  the  Deed. 

366.  Recitations  in  Deed  of  a  Considera-     384. 

tion.  385, 

367.  A  Void  Deed  Cannot  be  Construed 

as  a  Gift.  386. 

368.  Parol  Trust. 

369.  Gift  of  Easement— Timber.  387. 

370.  Gift   Mortis   Causa— Mutual     Mis- 

take— Revocation    of    Deed   on     388. 
Recovery. 

Parol,  Gift. 

371.  A    Parol   Gift    of  Real    Estate   is    389. 

Void.  390. 

372.  Gift  Followed  by  Improvements.        391. 

373.  Expenditure  of  Labor.  392. 

374.  Donor  Stipulating  for  Expenditure 

on  the  Land  Given.  393. 

375.  A  Promise  to  Give  is  Not  Sufficient     394. 

— Donor    Retaining    Control  of    395. 
the  Property. 

376.  Gift  or  Contract.  396. 

377.  Donor  Inducing  Donee  to  Change 

His  Condition— Will — Contract. 


Gift  Not  Inducing  Donee  to 
Change  His  Condition  nor  E.k- 
pend  Money  or  Labor  Thereon. 

Slight  or  Trivial  Improvements 
— Rents  a  Full  Compensation. 

Expenditure  Must  be  Made  in 
Consequence  of  and  Relying 
Upon  the  Gift. 

Gift  After  Improvements  Made 
or  Labor  Expended. 

Possession  Without  Improve- 
ments Made  or  Labor  Ex- 
pended May  be  Sufficient — 
Free  of  Incumbrance. 

Adverse  Possession  After  Gift 
Made. 

Confirming  Gift  by  Will. 

Title  Acquired  by  Donor  After 
Gift  Made. 

Possession  by  Donee  Must  be 
Clear. 

Gift  Incomplete  without  Posses- 
sion taken — Intention  to  Give. 

Gift  to  W'ife,  but  Possession 
taken  by  Husband — Adverse 
Possession. 

Donor  Regaining  Possession. 

Donee  Abandoning  Gift. 

Donor  Incumbering  Land. 

Donor  Reserving  Rent — Taxes 
Paid  by  Donor. 

Payment  of  Taxes. 

Relationship  of  Donor  and  Donee. 

Gift  by  a  Married  Woman — In- 
fant. 

Donee  Must  Show  a  Definite 
Promise — Must  Show  Land 
Given. 

367 


368  Gifts. 

397.  Land  Given — Boundaries.  402.  When  Donee  takes  Land  Without 

398.  Sufficiency     of    Evidence    to     Es-  the  Insurance  Tliereon. 

tablish  the  Gift.  403.  When  Donee  Acquires  a  Title  to 

399.  Donee  Must  Show  that  He  Made  the    Land    Given — Judgment 

Improvements  or  Expended  La-  Lien. 

bor  Thereon.  404.  Eight  of  Donee's  Creditors. 

400.  Declarations  of  the  Donor  to  Prove     405.  Kind    of     Action — Ejectment — 

or  Disprove  Gift.  Trespasser — Trial  by  Jury. 

401.  Acts  and   Conduct    of  Donor   and     406.  Compensation  in  Damages. 

Donee.  407.  Donee  Entitled   to  Kecover  for 

Improvements. 

359.  Inteoduction-. — The  subject  of  a  gift  of  real 
estate  may  be  divided  into  two  branches :  Gift  by  Deed  ; 
and  Gift  by  Parol.  Incidentally  connected  with  the  sub- 
ject are  those  of  Specific  Performance  and  Trusts,  which 
have,  however,  been  fully  treated  elsewhere. 

Gift  by  Deed. 

360.  puechase  by  doxoe  and  conveyance  to 
Donee  by  Vendoe — Specific  Peefoemance — Pue- 
CHASE-MoNEY  MoETGAGE. — A  commou  form  of  a  gift  of 
real  estate  is  where  the  donor  purchases  real  estate  and 
pays  the  purchase  price,  directing  the  vendor  to  make  a 
conveyance  directly  to  the  donee.  Where  it  is  the  inten- 
tion of  the  donor  to  make  a  gift,  such  a  transaction  is 
valid.^  Such  a  gift  is  completed  when  the  deed,  or  con- 
tract for  a  deed,  is  delivered.  It  is  irrevocable  ;  and  the 
donee  may  maintain  an  action  against  the  vendor,  in  the 
case  of  a  contract  for  a  deed,  for  a  specific  ^performance  of 
such  a  contract ;  ^  and,  no  doubt,  where  the  deed  has  been 
delivered,  an  action  of  ejectment  for  possession ;  for  as 

1  Oliver  v.  Moore,  23  Ohio  St.  473;  Whitten  r.  Wliitten,  3  Cush.  191.  A  deed 
of  "all  the  estate  which  he  [the  donor]  owns  at  the  date  of  the  deed,  or  should 
own  at  his  death,"  does  not  pass  money  of  which  he  died  possessed:  Butler  v. 
Scofield,  4  J.  J.  Mar.  139. 

2  Eaymond  v.  Pritchard,  24  Ind.  318. 


Gift  of  Real  Estate.  369 

between  the  vendor  and  the  donee  the  relation  is  one  of 
contract.  But  where  the  husband  purchased  land  subject 
to  a  mortgage-debt,  causing  the  land  to  be  conveyed  to 
his  wife  as  a  gift,  subject  to  the  mortgage,  and  at  the  same 
time  jDromised  the  vendor  to  pay  the  mortgage-debt  upon 
maturity ;  it  was  held  that  his  promise  to  pay  the  debt 
did  not  inure  to  her  as  a  gift  either  of  an  interest  in  the 
land  or  of  the  money  promised  to  be  paid  until  payment 
in  fact  was  made.  The  husband  becoming  insolvent  before 
payment  of  the  mortgage  was  made,  payment  thereafter 
was  deemed  fraudulent.^ 

361.  HusBAXD  TO  Wife — Wife  to  Husband. — A  hus- 
band may  make  a  gift  of  real  estate  by  deed  directly  to 
his  wife ;  and  a  nominal  consideration  and  the  use  of  the 
words  grant,  bargain,  sell,  convey,  and  warrant  does  not 
change  the  character  or  object  of  the  conveyance.^  Thus 
where  a  husband  expressed  his  intention  to  execute  the 
deed,  of  which  expression  the  wife  was  aware,  but  she 
never  knew  it  had  been  executed  until  after  his  death, 
when  she  found  it  among  his  papers,  and  that  a  record  of 
it  had  been  made  in  the  recorder's  office,  it  was  held  that 
there  was  a  valid  gift,  her  possession  of  the  deed  raising  a 
presumjDtion  of  assent  to  the  gift.'"^  But  a  wife  cannot 
make  a  gift  of  her  real  estate  directly  to  her  husband  ;  for 
she  cannot  execute  a  deed  unless  he  joins  therein ;  and  in 

^Oliver  v.  Moore,  23  Ohio  St.  473.  If  a  liusband  has  an  equitable  title  in  real 
estate  and  direct  the  person  lidding  the  legal  title  to  convey  it  to  his  wife,  such 
conveyance  operates  as  a  gift  of  the  land :  Crittenden  v.  Canfield,  87  Mich.  152. 

*  Barker  v.  Koneraan,  13  Cal.  9;  Shepard  v.  Sliepard,  7  Johns.  Ch.  57;  S.  C.  11 
Am.  Dec.  396;  Jones  v.  Obenchain,  10  Graft.  259;  Hunt  c.  Jolinson,  44  N.  Y. 
27  ;  S.  C.  4  Am.  Rep.  631 ;  Blalock  r.  Milard,  87  Geo.  573  (subsequent  declarations 
of  donor  cannot  defeat  the  gift)  ;  Dale  v.  Lincoln,  62  111.  22 ;  Capek  v.  Kropik, 
129  111.  .309 ;  Sims  v.  Rickets,  35  Ind.  181  ;  S.  C.  9  Am.  Rep.  679  ;  Huber  v.  Ruber, 
10  Ohio,  371;  Hartwell  v.  Jackson,  7  Tex.  576  ;  Wilder  v.  Brooks,  10  Minn.  50 ; 
Beatie  v.  Calhoun,  73  Geo.  269. 

»Dale  V.  Lincoln,  62  111.  22.     See  Blalock  v.  Milard,  87  Geo.  573. 
24 


370  Gifts. 

the  instance  supposed,  lie  cannot  be  both  grantor  and 
grantee.^ 

362.  Courts  Will  Not  Enforce  a  Voluntary 
Deed — Delivery  of  Deed. — If  a  deed  is  purely  volun- 
tary, the  donee  cannot  invoke  the  aid  of  a  court  of 
equity  to  enforce  its  provisions.  Delivery  of  the  deed  is 
an  essential  part  of  the  gift,  although  a  delivery  for  rec- 
ord is  sufficient.^  Thus  where  the  deed  was  found  among 
the  donor's  papers  at  his  death,  the  court  declined  to  en- 
force its  provisions.^  This  is  especially  true  if  the  donor 
distinctly  declared  that  the  deed  was  not  to  take  effect 
during  his  lifetime,*  or  was  not  to  be  delivered  until  a 
lease  for  life  was  executed  and  delivered  to  the  custodian 
of  the  deed.^ 

363.  Reforming  a  Voluntary  Deed — Restoring 
Lost  Deed. — A  voluntary  deed  cannot  be  reformed.  A 
court  of  equity  never  lends  its  assistance  to  enforce  the 
specific  performance  of  a  voluntary  contract,  where  no 
consideration  emanates  from  the  party  asking  perform- 
ance, as  in  a  gift.*'  "  What  I  consider,"  said  Lord  Rom- 
illy,  "  to  be  settled  by  the  case  is  this,  that  if  a  voluntary 
deed    is    incomplete,    this    court    will    not    compel  the 

» White  V.  Wager,  25  N.  Y.  328 ;  Winans  i-.  Peebles,  32  N.  Y.  423. 

2  Oliver  v.  Moore,  23  Ohio  St.  473;  Groves  r.  Groves,  3  Young  &  J.  163  ; 
Colman  v.  Sarrel,  1  Ves.  Jr.  50 ;  S.  C.  3  Bro.  C.  C.  12  ;  Fletcher  r.  Fletcher,  4  Hare, 
67  ;  Price  v.  Price,  14  Beav.  598 ;  affirmed  1  De  G.,  M.  &  G.  308 ;  S.  C.  21  L.  J. 
Ch.  (N.  S  )  53;  Lamprey  v.  Lamprey,  29  Minn.  151  ;  McEwen  v.  Troost,  1  Sneed. 
186 ;  Corley  v.  Corley,  2  Coldw.  520. 

^  Martin  v.  Ramsey,  5  Humph.  349  ;  Warriner  v.  Rogers,  16  L.  R.  Eq.  340  ;  S. 
C.  42  L.  J.  Ch.  581  ';  28  L.  T.  863  ;  21  W.  R.  766  ;  Richards  v.  Delbridge.  43  L. 
J.  Ch.  459  ;  S.  C.  22  W.  R.  584 ;  Bottle  v.  Knocker,  25  W.  R.  209 ;  S.  C.  35  L.  T. 
N.  S.  545;  46  L.  J.  Ch.  159. 

*  Taylor  v.  Taylor,  2  Humph.  597  ;  Dillon  v.  Coppin,  4  Myl.  &  Cr.  647  ;  Jef- 
ferys  v.  Jefferys,  1  Cr.  &  Ph.  138. 

s  Hoig  V.  Adrian  College,  83  III.  267. 

«  Mulock  V.  Mulock,  31  N.  J.  Eq.  594 ;  Groves  v.  Groves,  3  Y.  &  Jr.  163. 


Gift  of  Real  Estate.  371 

completion  of  an  imperfect  instrument ;  the  court  will 
never  interfere  to  enforce  a  contract  for  the  due  ex- 
ecution of  a  voluntary  deed."  ^  If  contrary  to  the  inten- 
tion of  the  parties,  and  perhaps  if  to  the  donor's  intention 
alone,  the  whole  will  be  set  aside.^  But  a  court  of  equity 
will  establish  or  restore  a  lost  voluntary  deed  where  the 
gift  has  been  consummated.^ 

364.  Gift  in  Wkiting  Enforced  Between  Blood 
Relations. — A  father  bought  a  farm  and  had  it  conveyed 
to  himself.  Shortly  thereafter  he  ^wt  his  daughters  in 
possession  of  it,  and  they  continued  so  in  j)ossession  for 
twenty-eight  years,  when  they  brought  an  action 
against  him  to  compel  him  to  make  them  a  convey- 
ance of  the  land.  Ten  years  before  this  action  was 
brought,  the  father  executed  and  delivered  to  them  a 
paper,  as  follows  :  "  I  sine  all  my  interest  and  claim  unto 
Mary  Marling  and  Elizabeth  IMarling,  the  farm  they  now 
live  on,  caled  the  Harsty  farm,  as  witness  my  hand  and 
sel.  Elijah  Marling."  This  was  unsealed  ;  yet  it  was 
held  that  a  court  of  equity  would  effectuate  the  gift,  by 
compelling  a  conveyance  to  the  children.^  This  case,  and 
others,  rest  upon  the  relationship  of  the  donor  and  donee, 
the  proximity  of  blood  being  deemed  a  sufficient  consid- 
eration. This  principle  does  not,  however,  extend  to 
collateral  relations.^ 

365.  Donee  May  Maintain  an  Action  for  Posses- 
sion Under  the  Deed. — If  a  deed  of  gift  has  been  made 

1  Lister  V.  Hodgson,  L.  R.  4  Eq.  Cas.  30;  S.  C.  15  W.  R.  547. 

2  Turner  v.  Collins,  L.  R.  7  Ch.  App.  Cas.  329;  S.  C.  25  L.  T.  N.  S.  374 ;  Phillipson 
?•.  Kerry,  32  Beav.  628  ;  Broun  v.  Kennedy,  33  Beav  133;  S.  C.  9  Jur.  N.  S.  1163. 

3  Hodges  V.  Spicer,  79  N.  C.  22.3. 

«  Marling  v.  Marling,  9  W.  Va.  79  ;  S.  C.  27  Amer.  Rep.  535  ;  Mclntire 
V.  Hughes,  4  Bibb.  186  (father  to  son)  ;  Mahan  v.  Mahan,  7  B.  Mon.  579  (father 
to  son) :  Bright  v.  Bright,  8  B.  Mon.  194  (father  to  son) ;  Jones  v.  Obenchain,  10 
Gratt.  259  (husband  to  wife). 

5  Buford  V.  McKee,  1  Dana,  107. 


872  Gifts. 

and  delivered — fully  executed — the  donee  may  maintain 
an  action  against  the  donor,  and  those  holding  under  him, 
for  possession  of  the  land  given.  Thus  a  father  executed 
a  deed  to  his  son  for  a  small  tract  of  land,  delivering  it  to 
him.  This  was  in  1837,  and  he  resided  thereon  until  his 
death,  in  1859.  While  residing  upon  the  land  he  repeat- 
edly declared  that  the  land  belonged  to  his  son,  that  he 
had  given  him  a  deed  for  it,  declined  to  sell  it  when  so- 
licited, for  that  reason,  and  said  he  was  to  live  thereon 
during  his  life.  He  paid  the  taxes,  and  even  rented  a 
part  of  it  to  the  donee.  At  his  death  the  son  brought  an 
action  of  ejectment  against  the  heirs  of  his  father,  claim- 
ing ownership  by  virtue  of  the  deed ;  and  the  court  held 
that  he  could  maintain  the  action.^ 

366.  Kecitatiox  ix  Deed  of  a  Consideration. — If 
the  deed  of  gift  contains  a  recital  that  it  is  made  upon  a 
good  and  valuable  consideration,  no  j^resumption  arises 
that  the  land  was  intended  as  a  gift,  even  though  from 
one  relative  to  another  standing  in  the  relation  of  parent 
to  child.^  But  it  may  be  shown  that  there  was  in  fact  a 
sale  and  not  a  gift.^ 

367.  A  Void  Deed  Caxxot  be  Construed  as  a  Gift. 
— A  deed  that  is  void  cannot  be  construed  as  a  gift.  Thus 
where  a  statute  required  a  gift  of  shares  of  stock  to  be  made 
by  deed,  attested  and  sealed  by  the  clerk  of  the  court,  mak- 
ing the  affixing  of  the  seal  requisite  to  its  validity,  it  was 
attempted  to  uphold  the  deed  as  a  gift.   It  was  decided  that 

1  Corley  v.  Corley,  2  Col(1\v.  520. 

^Deloach  v.  Turner,  7  Rich.  L.  143. 

^Meyers  v.  Farquharson,  46  Cal.  190.  This  may  not  be  done  under  the  Ohio 
statute  of  descent  where  the  phrase  "deed  of  gift  from  ancestor"  is  used:  Pat- 
terson V.  Lamson,  45  Ohio  St.  77.  But  this  in  no  way  affects  the  statement  above, 
■which  is  so  potent  at  this  day  that  a  further  citation  of  authorities  is  deemed 
unnecessary. 


Gift  of  Real  Estate.  373 

the  action  could  not  be  maintained,  and  that  the  deed 
could  not  be  introduced  in  evidence  for  that  purpose.^ 
Nor  will  a  deed  given  for  an  illegal  or  immoral  purpose 
be  construed  as  a  gift,  nor  enforced.^ 

368.  Paeol  Trust. — A  gift  by  a  deed  absolute  on  its 
face  will  defeat  a  parol  trust  or  reservation  in  the  donor's 
favor.  It  has  the  effect  of  an  unconditioned  gift,  the  trust 
being  void.^ 

369.  Gift  of  Easement — Timber. — A  gift  of  a  right 
of  way  is  not  a  gift  of  the  earth  and  other  materials  which 
may  exist  within  the  boundary  lines,  the  right  of  which 
is  given.  Therefore,  timber  growing  in  such  right  of  way 
belon2:s  to  the  donor.* 


'O^ 


370.  Gift  Causa  Mortis — Mutual  Mistake — Revo- 
cation OF  Deed  on  Recovery. — The  law  does  not  i:>er- 
mit  the  gifts  of  lands  mortis  causa.  Such  a  gift  cannot  be 
made.  "A  gift  of  real  estate  cannot  be  sustained  as  a 
donatio  mortis  causa,  for  that  only  extends  to  the  person- 
alty." Consequently,  where  A,  being  desperately  sick,  in 
prospect  of  death,  executed  to  his  wife  a  deed  for  all  his 
real  estate,  and  a  separate  deed  for  his  personal  property, 
both  of  which  were  recorded,  it  was  held  that  the  latter 
deed  was  good  as  a  donatio  moi^tis  causa,  but  the  deed  for 
the  real  estate  was  invalid,  both  as  a  gift  and  as  a  testa- 
mentary disposition  of  the  land.^  In  this  case  the  donor 
died  from  the  sickness  within  a  month  after  executing  the 
deed.     But  where  a  donor,  under  like  circumstances,  exe- 

'  Blagg  V.  Hunter,  15  Ark.  246. 
^  Reade  v.  Adams,  5  Ir.  C.  L.  Rep.  426. 
3  Palmer  v.  Sterling.  41  Mich.  218. 

*  Smith  V.  City  of  Rome,  19  Geo.  89 ;  Lade  v.  Shepard,  2  Str.  1004;  Goodtitle  v. 
Acker,  1  Burr,  133. 
^Meach  V.  Meacli,  24  Yt.  591. 


374  Gifts. 

cuted  a  deed  of  land,  and  then  recovered,  it  was  held 
that  he  could  maintain  an  action  to  cancel  the  deed  and 
set  it  aside,  on  the  ground  of  mutual  mistake  of  a  material 
fact — the  mistake  of  his  early  j^rospective  death  from  that 
sickness.^ 

Parol  Gift. 

371.  A  Parol  Gift  of  Real  Estate  is  Void. — A 
parol  gift  of  lands,  speaking  generally,  is  void.  There 
may  be  attendant  circumstances  which  render  it  inequita- 
ble to  allow  a  donor  to  assume  the  possession  of  land  given 
to  the  donee  by  parol,  which  courts  of  equity  will  prevent ; 
but,  aside  from  these,  the  statute  of  frauds  renders  every 
parol  gift  of  lands  not  only  voidable,  but  void.'-^ 

372.  Gift  Followed  by  Impeovemexts. — The  statute 
of  frauds  renders  almost  every  agreement  not  in  writing 
concerning  lands  void,  the  chief  excej^tion  being  leases  for 
three  years ;  but  all  parol  agreements  for  the  conveyance 
of  the  fee  simple  of  real  estate  is  not  only  voidable  but 
void,  and  neither  party  can  avail  himself  of  its  terms. 
Courts  of  equity,  however,  were  not  slow  to  notice  that  the 
enforcement  of  the  exact  terms  of  the  statute  often  worked 
great  hardships.  Thus,  a  sale  of  land  by  parol,  followed 
by  j)ayment  of  the  purchase-money,  possession  and  erection 
of  improvements  thereon  by  the  vendee,  manifestly  places 
the  vendee  in  a  very  unjust  position  if  he  is  compelled  to 
yield  up  the  possession  to  the  vendor.  So  the  same  is 
true  if  the  purchase-money  has  not  been  paid.  So,  too, 
it  is  manifestly  inequitable  to  allow  a  donor  to  refuse  to 
complete  his  gift  when  he  has  by  his  acts  and  words  in- 
duced the  donee  to  enter  into  j^ossession  of  the  real  estate, 
and  such  donee  has  expended  large  sums  of  money  in  im- 

'  Houghton  r.  Houghton,  34  Hiin,  212. 
^  Duckett  V.  Duckett,  71  Md.  357. 


Gift  of  Real  Estate.  375 

provements  and  the  like.  Therefore,  courts  have  adopted 
the  rule  that,  if  the  owner  of  land  give  it  away,  and  the 
donee  enter  into  possession,  and  make  lasting  and  valuable 
improvements,  the  donor  will  not  be  allowed  to  shield 
himself  under  the  statute  of  frauds  and  reclaim  the  land. 
This  is  the  doctrine  of  the  Federal  courts^  and  of  a  num- 
ber of  State  courts.^  "  There  is  no  important  distinction," 
says  the  New  Hampshire  court,  "  in  this  respect  between 
a  promise  to  give  and  a  promise  to  sell.  The  expenditure 
of  money  or  labor  in  the  improvement  of  the  land,  induced 
by  the  donor's  promise  to  give  the  land  to  the  party  mak- 
ing the  expenditure,  constitutes,  in  equity,  a  consideration 
for  the  promise,  and  the  promise  will  be  enforced,"  ^ 
Thus,  a  father,  in  the  last  case  cited,  gave  his  son  by 
parol  a  piece  of  land  in  1860,  and  the  son  lived  thereon 
for  twenty  years,  erecting  improvements  valued  at  $3,000. 
At  his  father's  death  the  son  filed  a  bill  for  specific  per- 
formance, and  it  was  held  that  he  was  entitled  to  it.  So, 
wdiere  a  father  jourchased  the  land  for  his  son,  with  the 
distinct  understanding  that  the  latter  should  at  once  take 
possession,  hold  and  use  it  as  his  own,  the  former  repeat- 
edly saying  that  he  had  so  purchased  it  for  him,  given  it 
to  him,  and  placed  him  in  possession  thereof;  conducting 
himself  toward  the  son,  as  if  the  latter  owned  it,  for  seven 
years ;  the  son  paying  the  taxes,  which  were  assessed  to 
him ;  the  father  introducing  the  son  to  insurance  agents 
as  the  owner  of  the  land  and  the  buildings  thereon,  which 
were  insured  in  the  name  of  the  latter  ;  the  father  saying 
he  would  convey  the  property  to  the  son  as  soon  as  the 
preliminary  arrangements  for  a  deed  had  been  perfected  ; 
and  the  son,  under  the  faith  of  the  promise,  making  im- 

^Neale  v.  Neale,  9  AVall.  1. 

^  Dawson  v.  McFaddin,  22  Neb.  131  ;  Guynn  v.  McCauley,  32  Ark.  97  ;  Truman 
V.  Truman,  79  la.  506  ;  Jones  v.  Tyler,  6  Mich.  364. 
^Seavey  v.  Drake,  62  N.  H.  393. 


376  Gifts. 

provements  to  the  dwelling-house  to  the  amount  of  $3,000 
— the  farm  originally  costing  near  $12,000 — the  gift  was 
held  to  be  perfected,  and  specific  performance  was  decreed.^ 

1  Hardesty  v.  Richardson,  44  Md.  617  ;  S.  C.  22  Am.  Rep.  57.  Cases  in  Mary- 
land supporting  this  case  are  Haines  v.  Haines,  6  Md.  435 ;  Shepherd  v.  Bevin,  9 
Gill,  32  ;  affirming  4  Md.  Ch.  133. 

Freeman  v.  Freeman,  43  N.  Y.  34 ;  S.  C.  3  Am.  Rep.  657  (a  good  defense  in  an 
action  of  ejectment),  affirming  5  Barb.  306;  Kutz  v.  Hibner,  55  111.  514;  S.  C.  8 
Am.  Rep.  665  ;  Syler  v.  Eckhart,  1  Bin.  378.  Such  a  gift  is  more  in  the  nature 
of  a  contract.  In  fact,  it  has  been  said  that  the  donee  "  is  a  purchaser  for  a 
valuable  consideration;"  and  that  "it  is  inaccurate  language  to  call  such  a 
contract  a  gift,  and  confusion  of  terms  is  very  apt  to  breed  confusion  of 
ideas:"  Moore  v.  Small,  19  Pa.  St.  461,  469;  Langston  v.  Bates,  84  111.  524; 
S.  C.  25  Am.  Rep.  466;  Van  Arsdale  v.  Perry,  21  N.  Y.  Wk.  Dig.  116;  Manly 
V.  Howlett,  55  Cal.  94  (in  an  action  of  ejectment,  such  a  defense  must  usually  be 
especially  plead) ;  Moore  r.  Pierson,  6  la.  279;  S.  C.  71  Am.  Dec.  409;  Pat- 
terson V.  Copeland,  52  How.  Pr.  460;  Dozier  v.  Matson,  94  Mo.  328  (father  after- 
ward became  insolvent);  Rumbolds  r.  Parr,  51  Mo.  592  (father  afterward  be- 
came insolvent) ;  Murphy  v.  Stell,  43  Tex.  123  (overruling  Boze  v.  Davis,  14 
Tex.  331  ;  Hendricks  v.  Snediker,  30  Tex.  296 ;  Curlin  v.  Hendricks,  So  Tex. 
225) ;  Crosbie  v.  M'Doual,  13  Yes.  148  (often  cited) ;  Burton  v.  Duffield,  2  Del. 
Cli.  130  ;  Porter  v.  Allen,  54  Geo.  623  (put  upon  the  ground  of  a  purchaser  for 
value).  Where  a  father  put  his  son  in  possession  under  a  promise  to  give  the 
land;  the  son  improved  it,  and  then  the  father  died ;  it  was  held  that  the  son  was 
entitled  to  have  that  land  setoff  to  him  as  his  share  of  the  estate,  if  it  did  not  ex- 
ceed that  amount;  and  perhaps  he  was  entitled  to  it  any  way:  Biehn  v.  Biehn, 
18  Gr.  Ch.  497.  Sucli  transactions  are  more  contracts  than  gifts,  if  coupled  with 
a  condition  to  support  the  donor:  Townend  r.  Toker,  1  Ch.  App.  416 ;  12  Jur. 
N.  S.  477;  35  L.  J.  Ch.  60S;  14  W.  R.  806;  14  L.  T.  N.  S.  531;  Lafollett  v. 
Kyle,  51  Ind.  446  ;  Campbell  v.  Mayes,  38  la.  9;  Faxton  v.  Faxon,  28  Mich.  159 
(a  promise  not  to  enforce  a  mortgage  against  land  if  A  would  live  thereon  and 
support  a  family;  held  a  valid  gift  of  the  mortgage) ;  Hill  v.  Chambers,  30  Mich. 
422  (for  support);  Sower  v.  Weaver,  84  Pa.  St.  262  (long  possession  in  donee  is 
always  a  potent  factor) ;  Lester  v.  Lester,  2S  Gratt.  737  (for  support) ;  Stanton  v. 
Miller,  58  N.  Y.  192,  reversing  1  T.  &  C.  23 ;  McCray  v.  McCray,  30  Barb.  633; 
Hart  V.  Hart,  3  Des.  Eq.  592  ;  Greenfield's  Estate,  14  Pa.  St.  489  ;  Willis  v.  Mat- 
thews, 46  Tex.  478;  Shobe  v.  Carr,  3  Munf.  10;  Stokes  v.  Oliver,  76  Va.  72; 
Halsey  v.  Peters,  79  Va.  60;  Griggsby  v.  Osborn,  82  Va  371 ;  Beall  v.  Clark,  71 
Geo.  818;  Jones  v.  Clark,  59  Geo.  136;  Irwin  v.  Dyke,  114  111.  302;  Warren  v. 
Warren,  105  111.  568  (for  services  rendered  donor) ;  Packwood  v.  Dorsey,  6  Rob. 
(La.)  329  (see  for  requisite  formalities  under  code) ;  Deschappelles  v.  Labarre,  3  La. 
Ann.  522  (confirmation  by  heirs  under  Louisiana  code).  There  are  a  few  cases 
in  which  it  is  held  that  there  cannot  be  a  parol  gift  of  lands.  Occasionally  a  case 
is  cited  as  holding  that  view,  which  upon  close  examination  is  found  to  have  gone 
off  on  some  question  essential  to  the  enforcement  of  a  parol  gift,  leaving  untouched 


Gift  of  Real  Estate.  377 

So  where  a  son  was  to  go  on  an  eighty-acre  tract,  improve  it, 
paying  a  certain  share  of  the  crops  during  the  father's  life, 
at  whose  death  the  son  was  to  have  it,  a  decree  for  specific 
performance  was  entered  against  the  heirs.^  So  where  a 
cemetery  lot  was  purchased  by  a  husband,  to  be  used  as 
a  place  of  burial  for  himself,  his  wife,  and  family ;  and 
both  he  and  she  expended  money  thereon,  greatly  improv- 
ing it ;  and  her  son  and  parents  and  his  brother  were 
buried  therein  ;  it  was  held  that  a  court  of  equity  would 
enjoin  a  sale  thereof  by  the  husband  upon  her  petition, 
chiefly  upon  the  principle  that  it  had  been  devoted  to  the 
23ur|)Ose  of  a  family  burial-place  and  his  action  had  in- 
duced her  to  expend  a  large  sum  of  money  thereon.^  So 
where  J.  W.  B.,  a  widower,  a  locatee  of  the  Crown,  agreed 
with  J.  B.,  his  son,  to  assign  his  interest  in  the  land  on 
condition  of  the  son  making  certain  payments  and  per- 
forming certain  services,  which  were  all  duly  made  and 
jDcrformed ;  and  afterward  the  patent  was  issued  in  the 
name  of  J.  B.,  by  which  name  the  father  was  known  to 
the  officers  of  the  land-granting  department ;  but  before 
issuing  the  patent  the  father  married,  and  the  son,  in 
addition  to  making  the  payments  and  j^erforming  the  serv- 
ices, erected  valuable  improvements,  it  was  decided  that 
the  second  wife  was  not  entitled  to  dower  in  such  land,  the 

the  general  question.  Thus  in  Alabama  equity  will  not  enforce  the  specific  exe- 
cution of  a  parol  gift  of  land :  Conn  v.  Prewitt,  48  Ala.  636  ;  Pinckard  i'.  Pinckard, 
23  Ala.  649;  Evans  v.  Battle,  19  Ala.  398;  Forward  v.  Arrastead,  12  Ala.  124; 
Collins  V.  Johnson.  57  Ala.  304 ;  Hubbard  v.  Allen,  59  Ala.  283  ;  Ridley  v.  McNairy, 
2  Humph.  174 ;  Rucker  v.  Abell,  8  B.  Mon.  566. 

For  other  cases  touching  parol  gifts  of  real  estate,  see  Harrison  v.  Harrison,  15 
S.  E.  Rep.  87  ;  Crittenden  v.  Canfield,  87  Mich.  152;  Blalock  r.  Miiand,  87  Geo. 
573;  Wootters  v.  Hale,  19  S.  W.  Rep.  134  (gift  to  infant) ;  Sourwine  i'.  Claypool, 
138  Pa.  St.  126. 

1  Smith  V.  Yocum,  110  111.  142;  Bohanan  v.  Bohanan,  96  111.  591 ;  McDowell 
V.  Lucas,  97  111.  489  ;  Langston  v.  Bates,  84  111.  524.  Such  instances  are  more  a 
contract  than  a  gift,  and  they  are  so  treated  :  Knapp  v.  Hungerford,  7  Hun,  5SS. 

'^  Schroder  v.  Wanzor,  36  Hun,  423. 


378  Gifts, 

father  being  a  trustee  for  the  son.^  So  where  a  father  put 
his  son  in  j)ossession  of  a  j^lantation  and  slaves,  and  per- 
mitted him  for  three  years  to  appropriate  the  crops  for 
his  own  use,  it  was  hekl  that  the  cro])  of  the  fourth  year, 
as  well  as  the  23receding  three,  were  to  be  considered  as 
gifts  from  the  father  to  the  son,  and  liable  to  the  claims  of 
the  latter's  creditors.^  A  father  desired  to  give  his  daugh- 
ter, on  her  marriage,  a  sum  of  money,  but  she  preferred 
the  gift  to  be  in  land.  He  then  gave  her  husband  a 
sum  of  money,  and  he  told  his  wife  of  its  receipt,  and, 
Avith  her  consent,  used  it  in  his  business.  A  year  after- 
ward the  father  and  husband  purchased  a  farm  together, 
l^art  cash  and  part  on  time,  and  a  bond  for  a  deed  was 
executed  to  the  father,  the  deed  to  be  made  to  him  alone. 
The  daughter  and  husband  took  possession  of  the  farm  with 
the  father's  consent,  and  so  remained  until  suit  brought. 
The  husband  became  insolvent,  and  the  father  by  deed 
gave  the  land  to  a  son,  in  trust  for  the  daughter  during 
her  life,  and  remainder  to  her  child.  The  daughter  sought 
to  set  the  deed  aside,  and  procure  a  conveyance  in  her 
favor ;  but  the  court  held  that  at  the  best  she  was  entitled 
to  such  an  interest  as  her  money  bore  to  the  entire  pur- 
chase-money ;  and  as  to  the  remainder  there  never  was  a 
gift.^  So  where  a  father  verbally  gave  his  married  daugh- 
ter land  and  put  her  and  her  husband  into  possession  of  it, 
and  shortly  after  the  land  was  sold  by  the  daughter  and 
her  husband,  the  father  ratifying  the  sale  by  the  execu- 
tion of  a  deed  therefor  to  the  purchaser,  and  the  husband 
received  the  purchase-money  and  delivered  it  to  the 
daughter,  his  wife,  this  was  held  to  be  a  good  gift  of  the 
proceeds.* 

1  Barns  v.  Burns,  21  Gr.  Ch.  (U.  C.)  7. 

^Skinner  v.  Skinner,  4  Ired.  L.  175. 

3  Crawford  v.  Manson,  82  Geo.  118. 

*Chacliere  v.  Dumartrait,  2  La.  40.   A  verbal  agreement  between  a  brother  and 


Gift  of  Real  Estate.  379 

373.  Expenditure  of  Laboe. — An  expenditure  of 
labor  upon  the  land  is  sufficient,  if  of  a  suitable  kind.  If 
the  condition  is  to  put  up  certain  kind  of  improvements, 
then  it  is  immaterial  how  they  are  put  up — whether  by 
the  expenditure  of  money  or  labor,  unless  there  is  a 
sj^ecific  stipulation  to  that  effect.  And  even  where  no 
stipulation  whatever  is  made  with  regard  to  the  expendi- 
ture of  money  or  labor,  it  is  immaterial  what  kind  of 
labor  is  performed,  so  long  as  it  is  of  that  character  or 
kind  which  the  donee  would  not  have  expended  if  the 
property  had  not  been  given  to  him,  and  which  an  owner 
himself  would  be  likely  to  have  done.  Labor  expended 
to  clear  up  a  farm  in  the  forest,  or  to  drain  swampy  land, 
or  to  break  and  bring  into  subjugation  wild  prairie  land, 
is  as  potent  in  rendering  the  gift  irrevocable  as  the  build- 
ing of  fences,  houses,  or  barns.^ 

374.  Donor  Stipulating  for  Expenditure  on  the 
Land  Given. — Where  the  donor  stipulates  for  the  ex- 
penditure of  money  or  labor  upon  the  premises  given, 
especially  where  specifically  designated  in  amount,  the  gift 
is  held  peculiarily  binding  upon  the  donor.  "  And  equity 
protects  a  parol  gift  of  land,  equally  with  a  parol  gift 
to  sell  it,  if  accompanied  by  possession,  and  the  donee, 

a  sister  that  the  latter  will  give  her  land  to  tlie  former  in  consideration  of  8100 
per  vear  and  her  living  with  him  on  the  land,  wliicii  she  does  for  m::n\-  years, 
during  which  time  she  makes  declarations  tliat  she  intends  her  brother  to  have 
her  land  at  her  death,  is  neither  a  gift  nor  a  valid  contract :  Glass  v.  Gaines,  17 
S.  W.  Rep.  161 ;  S.  C.  15  S.  W.  Rep.  877. 

A  father  desiring  his  married  daughter  to  have  a  house,  told  her  to  look  at  one, 
which  she  did,  and  he  tlien  said  to  her:  '' It  is  for  you  I  am  buying  it."  He 
bought  it,  and  took  title  in  his  own  name.  She  made  some  improvements,  not 
exceeding  the  rents,  lived  in  the  house  for  three  or  four  years,  during  which  time 
the  father  paid  the  taxes,  except  for  one  year.  It  was  held  tliat  there  was  no 
gift:  Schoonmaker  v.  Plummer,  20  N.  E.  Rep.  1114. 

1  Neale  v.  Neale,  9  Wall.  1  ;  Dawson  t'.  McFaddin,  22  Neb.  1.31;  Stewart  v. 
Stewart,  3  Watts,  253 ;  Hardesty  v.  Richardson,  44  Md.  617  ;  S.  C  22  Am.  Rep. 
57. 


380  Gifts. 

induced  by  the  promise  to  give  it,  lias  made  valuable  im- 
j^rovements  on  the  property.  And  this  is  particularly 
true  where  the  donor  stipulates  that  the  expenditure  shall 
be  made,  and  by  so  doing  this  makes  it  the  consideration 
or  condition  of  the  gift."  ^  Thus  where  a  father  agreed 
with  a  son,  that  if  he  would  go  onto  a  twenty -five  acre 
woodland,  clear  up  a  i^art  of  it  and  live  thereon,  he  would 
give  him  a  deed  for  it  as  soon  as  he  had  done  a  certain 
portion  of  the  work  ;  and  the  son  took  possession,  cleared 
it  up,  paid  the  taxes,  and  erected  valuable  buildings 
thereon,  the  father  was  not  permitted  to  resume  possession 
thereof.^  Indeed,  it  is  said  that  in  such  an  instance  the 
donee  is  a  purchaser  for  a  valuable  consideration,"^  and  so 
in  fact  he  is ;  and  the  later  and  better  authorities  treat 
the  entire  transaction  as  a  contract  and  not  as  a  gift. 

375.  A  Promise  to  Give  is  Not  Sufficient — Donor 
Retaining  Control  of  the  Property. — It  is  well,  in 
this  connection,  to  distinguish  between  a  mere  promise  to 
give  in  the  future  and  the  act  of  gift  itself.  "  A  mere  in- 
tention, though  expressed,  as  to  a  future  disposition  of  a 
man's  property,  creates  no  legal  obligation  upon  him  to 
carry  out  that  intention ;  and  until  the  intended  gift  is 
made,  he  may  change  his  mind  respecting  it."  This  was 
said  in  a  case  where  a  father  promised  a  son  to  give  him 
a  tract  of  land  for  past  services ;  and  when  the  son  de- 
sired and  did  take  j)ossession,  refused  to  give  him  a  deed 
for  the  tract,  because  he  was  dissatisfied  with  his  marriage. 
But  the  son  took  possession,  and  improved  the  land.    The 

^Neale  v.  Neale,  9  Wall.  1;  Dawson  v.  McFaddin,  22  Neb.  131;  King  i-. 
Thompson,  9  Pet.  204;  Bright  v.  Bright,  41  111.  97  ;  France  v.  France,  4  lialst. 
Eq.  (N.  J.)  650 ;  Lobdell  v.  Lobdell,  36  N.  Y.  327  ;  S.  C.  33  How.  Pr.  347  ;  4 
Abb.  Pr.  (N.  S.)  56  ;  Freeman  v.  Freeman,  8  Amer.  L.  Reg.  (N.  S.)  29. 

^  France  v.  France,  4  Ilalst.  Eq.  (N.  J.)  650  ;  Lobdell  v.  Lobdell,  m'pra. 

3  Moore  v.  Small,  19  Pa.  St.  461. 


Gift  of  Real  Estate.  381 

court  declined  to  grant  liim  relief.^  So  where  a  testator 
placed  his  two  sons  in  possession  of  certain  portions  of 
his  land,  intending  to  convey  or  devise  the  same  to  them, 
but  retained  full  control  of  the  proj^erty,  notwithstanding 
which  they  made  valuable  improvements  upon  their  re- 
spective portions,  it  was  decided  that  they  neither  took  the 
land,  nor  were  they  entitled,  to  pay  for  the  imi^rovements.^ 
Thus  a  mother  urged  her  son,  about  leaving  home,  to  re- 
main, work  on  the  farm,  assist  her  in  bringing  uj)  the 
family,  and  she  would  give  him  the  south  half  of  the 
farm,  and  the  other  half  to  a  younger  brother,  on  condi- 
tion that  the  former  would  supjDOrt  her  during  life.  In 
consequence  of  this  promise  he  remained  with  the  family 
and  built  a  brick  dwelling  on  the  south  half  of  the  farm, 
of  which  house  he  agreed  and  did  give  to  his  mother  a 
certain  part  for  her  use  and  the  use  of  a  granddaughter 
living  with  her.  The  brothers  and  sisters  were  all  aware 
that  this  brother  claimed  under  the  alleged  agreement  or 
promise  ;  and  the  south  half  of  the  farm  was  always  des- 
ignated as  his.  The  son  fulfilled  his  part  of  the  agree- 
ment, until  his  mother  died,  seven  years  afterward.  But 
this  was  held  not  to  entitle  him  to  a  specific  performance 
of  the  agreement,  the  mother  having  died  without  execu- 
ting a  deed  therefor ;  because  the  agreement  to  convey 
was  only  a  promise  or  expectation  held  out  to  the  son  to 
induce  him  to  remain  with  her,  and  as  such,  was  not 
capable  of  being  specifically  enforced.^  While  represen- 
tations made  by  one  party  and  acts  done  by  another  u])on 
the  faith  of  such  representation  may  constitute  a  contract 
which  will  be  siDCcifically  executed  ;  yet  where  the  i-epre- 

1  McKay  v.  McKay,  15  Gr.  Ch.  (U.  C.)  371. 

*  Foster  V.  Emerson,  5  Gr.  Ch.  (U.  C.)  135.  Upon  another  point,  tliis  cnse  is 
probal)ly  no  longer  an  authority.     See  Keffer  v.  Keffer,  27  C  P.  U.  C  257. 

^Orr  V.  Orr,  21  Gr.  Ch.  (U.  C.)  397.  See  the  other  phase  of  this  case  in  Orr  v. 
Orr,  31  Q.  B.  U.  C.  13. 


382  Gifts. 

sentations  are  merely  of  a  future  intention,  as  to  which 
the  2^arty  refuses  to  bind  himself  by  contract,  the  engage- 
ment must  be  regarded  rather  as  of  an  honorary  charac- 
ter, and  not  enforceable  as  such  in  a  court  of  equity.^ 
"  Such  a  promise  or  gift  in  the  case  of  a  parent,  in  its 
very  nature  leaves  to  the  donor  a  locus  penitentice,  a  right 
to  change  and  revoke  or  modify  the  gift,  a  right  which 
the  exigencies  of  his  fortune  or  his  family  may  make  it 
projDer  for  him  to  exercise."  ^ 

376.  Gift  or  Contract. — It  is  very  often  difficult  to 
determine  whether  a  transaction  shall  be  viewed  as  a  gift 
or  a  contract ;  in  fact,  many  of  them  are  partly  gifts  and 
partly  contracts.  Thus  S,  intending  to  give  F  certain 
lands,  executed  an  instrument  for  the  sale  and  conveyance 
of  the  lands  to  her  on  payment  of  $1,100,  which  she 
agreed  to  pay.  It  was  never  intended  that  she  should 
pay  anything,  and  S  subsequently  indorsed  ujjon  the  in- 
strument a  receipt  in  full  of  the  23urchase  price  ;  no  money 
was  in  fact  paid.  It  was  decided  that  this  was  not  a 
voluntary  agreement  to  convey,  that  it  was  for  a  valuable 
consideration,  and  did  not  operate  as  a  gift  of  the  land, 
and  conclusively  rebutted  an  intent  to  make  a  present 
of  the  land  ;  but  was  a  present  of  the  debt,  the  receipt 
operating  as  a  valid  gift  of  the  debt,  leaving  the  right 
of  F  to  a  conveyance  in  force,  as  if  the  debt  had  been 

1  Cox  V.  Cox,  26  Grntt.  305. 

2  Taylor  v.  Staples,  8  R.  I.  170;  S.  C.  5  Ara.  Rep.  556;  Rucker  v.  Abell,  8  B. 
Men.  560 ;  PInchard  v.  Pinchard,  23  Ala.  649 ;  Adarason  v.  Lamb,  3  Blaekf.  446  ; 
Pope  i;.  Dodson,  58  111.  360.  Courts  will  not  enforce  an  unexecuted  gift,  nor  an 
executory  decree  in  its  nature  a  family  settlement ;  if  the  decree  provides  witliin 
itself  no  means  for  its  execution,  seems  to  be  an  imperfect  creation  of  a  trust  or 
gift,  it  will  not  be  enforced,  even  if  such  had  been  intended  ;  and  when  voluntary, 
it  is  subject  to  revocation  :  Wadhams  r.  Gay,  73  111.  415.  It  is  especially  true  that 
the  gift  is  not  binding  when  the  use  of  the  property  is  ample  compensation  to  the 
promisee  for  his  improvements  and  taxes  paid:  Walton  r  Walton,  70  111.  142; 
Hickman  v.  Grimes,  1  Marsh.  (Ky.)  80 ;  McMahill  v.  McMahUl,  69  la.  115. 


Gift  of  Real  Estate.  383 

paid.^  A  concession  of  land  by  the  public  to  an  individual 
if  he  will  fence  and  build  upon  it,  is  a  gift ;  although  he 
is  required  to  pay  the  government  the  cost  of  surveying 
and  patenting  it."^ 

377.  DoxoR  Inducing  Donee  to  Change  His  Con- 
dition— Will — Contract. — If  a  donor,  by  promises,  in- 
duces the  donee  to  change  his  position,  to  his  detriment, 
after  the  change  is  made  the  donor  can  be  compelled  to 
make  his  promises  good.  The  relation  between  them  then 
becomes  one  of  contract.  Thus  it  has  been  said :  "A 
representation  may  be  so  made  as  to  constitute  the  ground 
of  a  contract.  But  is  it  so  here  ?  Where  a  person  makes 
a  representation  of  what  he  says  he  has  done,  or  of  some 
independent  fact,  and  makes  that  representation  under 
circumstances  which  he  must  know  will  be  laid  before 
other  persons  who  are  to  act  on  the  faith  of  his  represen- 
tation being  true,  and  who  do  act  on  it,  equity  will  bind 
him  by  such  representation,  treating  it  as  a  contract. 
Suppose  that  this  gentleman  had  on  the  eve  of  the  mar- 
riage said  to  the  appellant :  '  You  may  safely  enter  into 
this  marriage,  for  I  have  executed  a  deed  by  which  I 
eno-ao-e  to  leave  you  such  and  such  estates.'  If  on  the  faith 
of  that  representation  the  nephew  had  married,  the  uncle 
would  then  have  made  a  representation  on  which  he  knew 
that  his  nephew  would  act,  and  it  would  be  a  fraud  on 
the  nephew,  or  on  those  who  deal  with  him,  and  come 
after  him,  to  set  up  as  an  answer  that  that  was  a  mere  in- 
tention which  he  had  entertained  at  the  time.  The  uncle 
would,  in  fact,  have  made  a  contract,  and  he  would  be 
compelled  to   make  it  good,  for  he  would  have  made  a 

1  Ferry  v.  Stephens,  66  N.  Y.  321  ;  reversing  5  Hun,  109.  See  Gray  r.  Barton, 
55  N.  X.  68. 

^Noe  V.  Card,  14  Cal.  576;  Scott  v.  Ward,  13  Cal.  458;  Chew  v.  Calvert,  1 
Walk.  (Miss.)  54.  Contra,  Yates  v.  Houston,  3  Texas,  433. 


384  Gifts. 

representation  with  a  view  to  induce  others  to  act  upon 
it,  and  on  the  fiiith  of  it  they  had,  at  the  moment,  acted. 
That  would  be  a  representation  which,  under  the 
circumstances  I  have  stated,  would  be  in  fact  a  contract. 
There  is  no  middle  term,  no  tertium  quid,  between  a  rep- 
resentation so  made,  to  be  effective  for  such  a  purjiose  and 
being  effective  for  it,  and  a  contract ;  they  are  identical. 
That  which  leads  to  the  representation  being  made  and 
acted  on  determines  its  nature,  gives  it  the  character  of  a 
contract,  or  leaves  it  a  mere  representation."  ^  Relying 
upon  these  rules  it  was  decided  in  Canada  that  where  the 
owner  of  real  estate  wrote  to  his  son  that  he  had  devised 
certain  portions  of  the  property  to  him,  and  expressed  a 
desire  that  he  would  leave  his  then  place  of  residence  and 
settle  on  the  devised  property,  by  the  devisor,  and  that  if 
he  did  so  the  will  should  in  that  respect  remain  un- 
changed ;  and  the  son,  acting  ujDon  the  desire  of  the 
father,  left  his  residence  and  went  to  live  beside  his 
father,  it  was  held  that  the  will  was  no  longer  revocable.^ 
So  a  promise  was  made  to  give  B  a  certain  tract  of  land  in 
case  he  married  C,  and  after  the  marriage  a  bond  was  exe- 
cuted to  that  effect,  containing  a  recital  that  the  obligor 
desired  the  land  to  go  to  the  male  issue  of  B  and  C.  It 
was  held  that  the  only  female  issue  of  B  and  C,  on  its 
father's  death,  its  mother  joining  therein,  could  enforce  a 
specific  ^performance  of  the  contract,  and  that  the  clause 
with  relation  to  the  descent  of  the  property  to  the  male 
issue  was  not  obligatory  upon  the  donees.^     As  a  rule, 

1  Mannsell  v.  White,  4  H.  L.  Cas.  1039 ;  S.  C.  IJ.  &  L.  539 ;  7  Tr.  Eq.  E.  413 ; 
Dillwyn  V.  Llewelvn,  8  Jiir.  N.  S.  1068;  S.  C.  10  W.  R.  742;  6  L.  T.  N.  S.  878; 
4  De  G.,  F.  &  J.  517  ;  Jordan  v.  Money,  5  FT.  L.  Cas.  185  ;  S.  C.  23  L.  J.  Cli.  8G5  ; 
Money  v.  Jordan,  2  DeG.,  M.  &  G.  318  ;  S.  C.  21  L.  J.  Ch.  893 ;  Hammersley  v.  De 
Biel,  12  CI.  &  F.  45  ;  affirming  3  Beav.  469  ;  Coles  v.  Pilkington,  44  L.  J.  Ch.  381 ; 
S.  C  19  L.  R.  Eq.  174. 

2  Fitzgerald  v.  Fitzgerald,  20  Gr.  Ch.  (U.  C.)  410. 

3  Boyd  V.  Shouldice,  22  Gr.  Ch.  (U.  C.)  1. 


Gift  of  Real  Estate.  385 

however,  mere  entry  into  j)ossession,  unless,  possibly, 
under  some  very  unusual  and  exceptional  circumstances, 
will  not  warrant  a  decree  of  specific  j^erformance.^  Thus 
where  the  owner  of  land  said  to  the  claimant,  who  was  in 
possession  of  the  house  and  lot :  "  I  give  this  to  you ;  you 
may  do  as  you  please  with  it,"  in  substance,  giving  her 
the  keys,  and  within  a  year  the  house  burned  down,  and 
the  plaintiff  moving  away  for  shelter  to  another  house, 
the  owner's  widow  entered  on  the  lot  and  built  a  new 
house  on  the  site  of  the  old  one,  and  the  claimant,  when 
the  new  house  was  completed,  moved  into  it  surreptitiously 
by  the  back  door  late  in  the  evening,  it  was  held  that 
there  was  no  completed  gift,  even  though  the  gift  was 
coupled  with  a  condition  that  the  claimant  was  to  take 
care  of  her  own  child.  This  condition  was  regarded  as  not 
adding  anything  to  the  force  of  the  gift,  for  the  claimant 
was  in  duty  bound  to  do  so  any  way,  and  the  promise 
raised  no  consideration  for  the  gift.^ 

378.  Gift  Not  Inducing  Donee  to  Change  His 
Condition  nor  to  Expend  Money  or  Labor 
Thereon. — Since  the  gift  is  held  good  in  equity  upon 
the  ground  that  it  has  induced  the  donee  to  change  his 
situation  or  condition,  or  to  expend  money  or  labor  upon 
the  land  given,  so  that  it  would  be  inequitable  to  allow 
the  donor  to  rescind  it,  it  necessarily  follows  that  if  it  has 
not  induced  the  donee  to  change  his  position,  nor  to  ex- 
pend labor  or  make  valuable  improvements  thereon,  the 
gift  is  void,  and  cannot  be  enforced  neither  against  the  do- 
nor or  against  his  creditors.^ 

379.  Slight  or  Trivial  Improvements — Rents  a 
Full  Compensation. — If  the  improvements  are  slight  or 

'Ogsbury  v.  Ogsbury,  115  N.  Y.  290,  295. 
^Anson  v.  Townsend,  73  Cal.  415. 

*  Stokes  V.  Oliver,  76  Va.  72;  Griggsby  r.  Osborn,  82  Va.  371. 
25 


386  Gifts. 

trivial,  when  there  is  no  agreement  touching  them,  or  the 
labor  nothing  beyond  the  cultivation  of  the  soil,  or  insig- 
nificant in  comparison  with  the  value  of  the  land,  there  is 
no  equity  raised  in  favor  of  the  donee.  The  rule  even 
goes  farther.  For  if  the  rents  and  profits  derived  by  the 
donee  from  the  land  by  virtue  of  his  possession  are  a  suf- 
ficient return  for  the  money  or  labor  expended  in  perma- 
nent improvements,  equity  will  not  decree  a  S23ecific 
performance.  But  it  is  clear  that  only  profits  in  such 
an  event  can  be  taken  into  consideration,  using  the  word 
rents  in  that  sense ;  for  if  the  profits  were  not  equal  to 
the  labor  expended  or  exjoense  incurred  in  securing  them, 
or  if  they  were  no  more,  then  the  donee  would  reap  noth- 
ing for  his  labor  or  money  expended  in  permanent  im- 
provements ;  and  it  would  be  a  manifest  injustice  to  not 
compel  the  donor  to  perfect  his  gift.^  But  it  will  not  do 
to  allow  the  profits  to  bear  too  much  weight ;  for,  as  it 
has  been  held,  compensation  for  the  improvements  or 
labor  is  not  a  bar  to  an  action  for  a  specific  j)erformance."^ 
Indeed,  it  was  held  in  one  case  that  the  improvements 
must  add  to  the  permanent  value  of  the  land  ;  ^  and  where 
the  benefits  to  the  donee  by  the  possession  of  the  land 
exceed  his  expenditure  upon  it,  a  specific  performance  will 

^  No  particular  case  can  be  cited  for  all  the  distinctions  drawn  in  the  above 
section,  but  the  sum  total  of  the  bulk  of  these  cases  are  as  we  have  stated  the  rules 
therein:  Dawson  v.  McFaddin,  22  Neb.  131;  Hardesty  v.  Eicliardson,  44  Md. 
617;  S.  C.  22  Am.  Rep.  57  ("'improvements  of  considerable  extent") ;  Eckert  v. 
Eckert,  3  P.  &  W.,  p.  332  ;  Young  v.  Glendenning,  6  Watts,  509  ('slight  and  tem- 
porary erections  for  the  tenant's  own  convenience  doubtless  give  no  equity"); 
Atkinson  v.  Jackson,  8  Ind.  31;  Burns  r.  Sutherland,  7  Barr,  103;  Moore  v. 
Small,  19  Pa.  St.  461,  470;  Moore  v.  Pierson,  6  Iowa,  279;  S.  C.  71  Am.  Dec. 
409;  Porter  v.  Allen  54  Geo.  623;  Ackerman  v.  Ackerman,  24  N.  J.  Eq.  315; 
affirmed,  lb.  585;  Ogsbury  v.  Ogsbury,  115  N.  Y.  290. 

^  Young  V.  Glendenning,  6  Watts,  509  ;  S.  C.  31  Am.  Dec.  492,  citing  Forster  r. 
Hale,  3  Ves.  696. 

^If  the  improvements  were  destroyed  after  erected  by  the  donee,  that  could  in 
no  wise  affect  the  case  afterward  brought,  for  the  donee  is  still  a  greater  loser  by 
not  having  the  gift  enforced. 


Gift  of  Real  Estate.  387 

not  be  decreed.^  When  the  donor  and  donee  are  related 
by  blood,  slight  improvements,  if  valuable  and  permanent 
in  character,  will  be  sufficient.'  The  improvements,  how- 
ever, must  not  only  be  substantial,  permanent,  and  valu- 
able, but  such  as  an  owner  would  ordinarily  make  upon 
the  estate  under  like  circumstances  ;  yet,  whether  slight  or 
extensive,  they  will  not  serve  the  purpose  unless  of  real 
value,  nor  unless  they  were  made  by  or  for  the  donee 
pending  his  possession,  and  upon  the  faith  of  the  jiarol 
gift  sought  to  be  set  up  and  enforced.^ 

380.  Expenditures  Must  be  Made  in  Consequence 
OF  AND  Relying  Upon  the  Gift. — Since  the  courts  en- 
force the  gift  by  decreeing  a  specific  performance,  because 
of  the  fact  that  the  words  and  the  acts  of  the  donor  have 
induced  the  donee  to  sj^end  labor  and  money  that  he 
would  not  have  otherwise  done,  it  must  be  clearly  shown 
that  the  expenditure  was  made  in  consequence  of  the  gift ; 
or,  perhaps,  in  part  in  consequence  of  it."^  Thus  a  promise 
to  give  a  farm  by  will,  followed  by  expenditure  in  im- 
provements, not,  however,  in  execution  of  the  contract  or 
at  the  promisor's  request,  cannot  be  enforced.^ 

381.  Gift  After  Improvements  Made  or  Labor 
Expended. — The  improvements  must  have  been  made  or 

MVack  V.  Sorber,  2  Whart.  387;  S.  C.  30  Am.  Dec.  269;  Glass  v.  Gaines, 
17  S.  W.  Rep.  161 ;  S.  C.  15  S.  "\V.  Rep.  877. 

^  Hughes  V.  Hughes,  72  Geo.  173. 

^  Porter  v.  Allen,  54  Geo.  623. 

■*  Dawson  v.  McFncklin,  22  Neb.  131  ;  Guynn  v.  McCauley,  32  Ark.  97  ;  Griggsby 
r.  0<born,  82  Va.  371 ;  Hardesty  v.  Richardson,  44  Md.  617;  S.  C.  22  Am.  Rop. 
57  ;  Minis  v.  Lockett,  33  Geo.  9  ;  Eckert  ?•.  Eckert,  3  P.  &  W.  332 ;  West  v.  Flaii- 
nagan,  4  Md.  36;  Murphy  v.  Stell,  43  Tex.  123;  Porter  v.  Allen,  54  Geo.  623  ; 
Beall  V.  Clark,  71  Geo.  818;  Jones  v.  Clark,  59  Geo.  136;  Irwin  v.  Dyke,  114  111. 
302;  Johnston  v.  Johnston,  19  la.  74. 

5  McClure  v.  McClure,  1  Barr  (Pa  ),  374.  This  was  chiefly  upon  the  ground 
that  it  was  a  contract  without  consideration. 


388  Gifts. 

labor  expended  upon  the  faith  of  the  gift ;  and  if  not  so 
done,  there  is  no  gift.  Thus  if  possession  is  taken  and 
improvements  made,  a  subsequent  parol  gift  will  not  be 
enforced ;  for  the  gift  did  not  induce  the  erection  of  the 
improvements.  And  in  such  an  instance,  where  the  al- 
leged donor  and  donee  are  father  and  son,  it  will  be  pre- 
sumed that  the  son  relied  ujDon  his  father  recompensing 
him  by  a  devise  of  the  land,  rather  than  by  a  gift  during 
his  lifetime ;  and  if  the  father  disa23j)ointed  him,  the  son 
is  without  recourse,  at  least  so  far  as  the  title  of  the  land 
is  concerned.^  This  is  very  well  illustrated  by  a  Canadian 
case.  In  that  instance  a  father  told  a  son  he  would  give 
him  a  tract  of  laud  for  work  he  had  done  for  him  after 
becoming  of  age.  Two  years  afterward  the  son  went,  on 
his  marriage,  into  possession,  with  his  father's  j^ermis- 
sion,  but  after  he  had  refused  to  give  him  a  deed,  or 
to  part  with  the  control  of  the  property.  After  the 
refusal  of  the  deed,  the  son  put  up  a  log  barn  on  the 
land.  The  son  sought  to  hold  the  j)roperty  on  the 
ground,  in  addition  to  another,  that  he  had  erected  valu- 
able buildings, — the  log  barn,  after  going  into  jDOSsession  ; 
but  the  court  denied  his  right  to  thus  claim  the  land, 
for  he  had  put  them  up  after  a  distinct  refusal  of  the 
father  to  make  the  gift.^ 

382.  Possession  Without  Improvements  Made  or 
Labor  Expended  May  be  Sufficient — Free  of  In- 
cumbrance.— Mere  possession  without  labor  expended  or 
improvements  made  may  be  sufficient  to  establish  the 
gift.  Thus  where  the  donor  offered  his  son-in-law,  who 
was  living  and  in  a  successful  business  in  another  town, 
that  if  he  would  move  to  his,  the  donor's,  place  of  resi- 

'  Eckert  v.   Eckert,  3   P.  &  W.  332 ;  Eckert  v.  Mace,  3  P.  &  AV.  364,  note ; 
Adamson  v.  Lamb,  3  Blackf.  446. 

i' McKay  v.  McKay,  15  Gr.  Ch.  (U.  C.)  371. 


Gift  of  Real  Estate.  389 

dence,  lie  would  give  his,  the  donee's,  wife  a  lot  and  an 
unfurnished  house  thereon ;  and  the  donee  accordingly 
did  move  at  an  expense,  furnish  the  house  with  his  own 
and  wife's  earnings,  and  occupied  it  twelve  years;  this 
was  held  to  be  such  a  gift  that  the  subsequent  insolvency 
of  the  donor  did  not  render  his  formal  conveyance  of  the 
lot,  at  that  time,  void ;  nor  render  it  liable  to  the  lien  of  a 
judgment  rendered  against  him  at  the  end  of  the  twelve 
years.^  If  the  condition  is  that  the  donee  must  not  only 
take  possession,  but  must  make  improvements ;  then  he 
must  not  only  show  a  i^ossession  in  himself,  but  the  erec- 
tion of  the  improvements.^  But  where  a  father  orally 
promised  his  daughter,  in  view  of  her  coming  marriage, 
that  he  would  give  her  a  designated  house ;  and  imme- 
diately after  that  event  put  her  and  her  husband  in  pos- 
session of  it ;  and  there  was  an  incumbrance  upon  it,  pay- 
able in  installments,  part  of  which  the  father  paid  before 
his  death,  it  was  decided  that  the  remainder  due  must  be 
paid  out  of  his  estate ;  for  the  part  performance  took  the 
case  out  of  the  statute  of  frauds,  and  the  promise  was  in 
effect  to  give  the  house  free  from  incumbrances.^ 

383.  Adverse  Possessioi^-  After  Gift  Made. — Pos- 
session of  land  retained  for  a  long  time  after  the  gift  made, 
although  no  improvements  are  erected  or  labor  expended 
thereon,  where  the  donee  is  claiming  the  land  all  the  time 
as  his  own,  will  give  such  donee  a  complete  title  to  the 

1  Burkhokler  v.  Ludlam.  30  Gratt.  255;  S.  C.  32  Am.  Rep.  668 ;  Law  v.  Henrv, 
39  InJ.  414  (improvements  also  erected)  ;  llalsa  v.  Ilalsa,  8  Mo.  303. 

2  Bright  V.  Bright,  41  111.  07  ;  Frame  v.  Frame,  32  W.  Va.  403. 

3  Ungley  v.  Ungley,  4  Ch.  Div.  73  ;  S.  C.  46  L.  J.  Ch.  189 ;  25  W.  E.  39  ;  35  L. 
T.  (N.  S.)  619  ;  19  Moak,  678 ;  affirmed  5  Ch.  Div.  887  ;  S.  C.  46  L.  J.  Ch.  854 ; 
25  W.  R.  733 ;  37  L.  T.  (N.  S.)  52. 

Where  a  father  and  children  were  tenants  in  common,  and  he  made  sundry- 
payments  for  the  preservation  and  protection  of  the  joint  property,  it  was  pre- 
sumed that  such  payments  were  gifts :  Chase's  Estate,  7  Pa.  C.  C.  298. 


390  Gifls. 

land.  Thus  where  A  made  a  lease  for  a  lot  of  ground  to 
B  for  a  term  of  one  year,  at  the  nominal  rent  of  $1,  and 
afterward  by  his  acts  and  declarations  showed  that  he 
had  given  the  lot  to  B  as  a  reward  for  past  services,  cor- 
roborated by  the  facts  that  the  latter  had  occupied  the  lot 
ever  since,  claiming  it  as  his  own  for  more  than  twenty- 
one  years,  and  that  it  had  been  taxed  in  his  name  and  the 
taxes  paid  by  him,  it  was  held  that  these  facts  constituted 
a  perfect  gift  of  the  lot  to  B.  "  So  long  a  possession,"  said 
the  court,  "  without  the  payment  of  rent  cannot  be  ac- 
counted for  by  the  lease.  It  was  so  long  that  the  defend- 
ant might  have  relied  on  it  alone  for  a  legal  title,  and 
surely  it  was  enough  to  save  him  from  the  necessity  of  any 
distinct  evidence  of  the  gift,  and  of  the  possession  being 
delivered  in  pursuance  of  it."  ^  So  a  father,  in  1859,  told 
his  married  son  to  go  and  live  on  a  certain  fifty-acre  tract, 
and  the  son  did  so,  clearing  it  up,  erecting  two  dwelling- 
houses  thereon,  spending  $500  of  his  wife's  money  in  so 
doing.  The  son  exjoected  and  believed  that  the  land  was 
to  be  his,  and  the  father  stated,  but  not  to  him,  that  he 
intended  it  to  be  the  son's  after  his  death.  Without  such 
ex23ectation  the  son  would  not  have  moved  on  the  land. 
In  1865  the  son,  desiring  to  raise  some  money  on  the 
land,  procured  his  father  to  execute  a  mortgage  on  it  for 
the  amount  desired ;  the  son  received  the  amount,  and 
j^aid  it  off  with  yearly  interest  by  1871.  There  were, 
however,  no  communication  between  the  son  and  the 
mortgagee.  In  1876  the  father  demanded  rent  of  the  son, 
which  was  refused  on  the  ground  that  the  latter  owned 
the  land.  The  father  then  brought  an  action  for  posses- 
sion ;  but  the  court  decided  that  the  son  became  upon  en- 
try a  tenant  at  will  to  his  father,  and  that  the  statute  of 
limitations  began  to  run  a  year  from  that  date,  ripening 

^  Mahoa  v.  Baker,  26  Pa.  St.  519. 


Gift  of  Real  Estate.  391 

into  a  perfect  title  in  1870 ;  that  by  the  execution  of  the 
mortgage  neither  father  nor  son  intended  thereby  to  make 
any  change  in  the  nature  of  the  son's  possession,  or  to 
create  a  new  tenancy,  for  which  there  was  no  necessity 
in  the  interest  of  the  mortgagee ;  that  the  existing  ten- 
ancy at  will  therefore  was  not  thereby  determined,  nor 
any  new  tenancy  at  will  created ;  that  even  if  it  had  been 
so  created,  the  statute  would  have  begun  to  run  again  in 
1866,  and  would  have  been  a  bar  in  1876.^  A  joint  pos- 
session, however,  with  the  donor  cannot  amount  to  an  ad- 
verse possession.^  Not  altogether  in  line  with  the  fore- 
going cases  are  the  cases  in  Alabama,  where  it  is  held 
that  "  a  parol  gift  of  lands  creates  a  mere  tenancy  at  will, 
and  may  be  revoked  or  disaffirmed  by  the  donor,  un- 
less an  adverse  possession  under  it  had  contiued  for 
the  statutory  period,  which  bars  an  entry  into  lands."  ^ 
But  after  making  tliis  statement  the  court  proceeds 
and  says :  "  An  uninterrupted,  continuous  possession 
by  a  donee,  under  a  j^arol  gift,  accomj^anied  by  a  claim 
of  right  to  the  lands,  is  adverse  to  the  donor,  and  will 
be  protected  by  the  statute  of  limitations.  To  convert 
such  possession  into  an  adverse  jDOSsession,  hostile  to 
the  title  of  the  donor,  there  must  have  been,  for  the 
period  prescribed  by  the  statute  of  limitations,  a  claim  of 
right  asserted  by  the  donee,  and  an  absence  of  recogni- 
tion of  the  title  of  the  donor.  If  during  the  possession 
the  donee  has  recognized  the  title  of  the  donor,  and  ac- 
knowledged its  superiority,  the  possession  is  not  adverse."  * 
In  the  case  of  a  father  and  son  it  is  said  that  his  possession 

^  Keffer  v.  Keffer,  27  C.  P.  U.  C.  257.  The  court  cites  many  cases,  and  declines 
to  follow  Foster  v.  Emerson,  5  Gr.  Ch.  135.  See,  to  same  eflect,  Vincent  v.  Mur- 
ray, 15  N.  B.  375. 

■•^  Orr  «>.  Orr,  31  Q.  B.  U.  C.  13. 

'Jackson  v.  Rogers,  2  Cai.  Cas.  314;  Eoykin  r.  Smith,  65  Ala.  294. 

*  Collins  V.  Johnson,  57  Ala.  304;  Moore  v.  Webb,  2  B.  Mon.  282. 


392  Gifts. 

however  long  continued,  does  not  become  adverse,  until 
asserted  so  openly  and  notoriously  so  as  to  raise  the  pre- 
sumption of  notice  to  the  donor ;  and  if,  after  his  father's 
death,  he  as  administrator  joins  with  his  co-administrator 
in  obtaining  an  order  for  the  sale  of  the  lands,  this  is  a 
distinct  recognition  of  his  father's  title,  and  his  subsequent 
possession  is  held  in  subordination  to  it  as  purchaser.^ 
But  where  it  was  shown  that  a  single  woman  took  j^os- 
session  of  the  land  under  an  alleged  verbal  gift  from  an 
uncle,  and  occupied  them  for  twenty  years,  but  never  did 
anything  without  consulting  him,  during  that  period  ; 
that  she  told  her  friends  she  owned  the  land,  and  actually 
let  a  portion,  with  his  approval,  and  collected  the  rents  ; 
that,  as  she  testified,  "  as  regards  the  tenants,  to  them  I 
always  acted  as  owner  ;"  that  the  members  of  her  father's 
family,  who  lived  with  her  part  of  the  time,  paid  her  no 
rent ;  that  she  did  "  papering  or  whitewashing,  or  some- 


^  Boykin  v.  Smith,  65  Ala.  294.  It  is  well  to  observe  that  in  Alabama  no  ac- 
tion can  be  maintained  to  specifically  enforce  a  parol  gift  of  lands  :  Conn  v.  Prewitt, 
48  Ala.  636 ;  Bakersfield,  etc.,  v.  Chester,  55  Cal.  98  (in  a  claim  of  ownersliip 
asserted  and  maintained).  Under  the  Georgia  code,  in  case  of  a  claim  of  a  gift 
by  a  son  from  his  father,  the  former  must  show  tliat  he  had  an  exclusive  pos- 
session, without  the  pavment  of  rent,  continuously  for  seven  years  during  the 
lifetime  of  the  father ;  and  if  the  father  die  before  the  seven  years  are  completed 
the  conclusive  presumption  of  ownership  provided  for  therein  does  not  exist : 
McKee  v.  McKee,  48  Geo.  332  ;  Beall  v.  Clark,  71  Geo.,  p.  818.  But  this  with 
relation  to  the  length  of  time,  applies  to  an  instance  where  no  valuable  improve- 
ments are  made;  for  if  valuable  improvements  are  made  the  seven  years'  limi- 
tation does  not  apply  :  Hughes  v.  Hughes,  72  Geo.  173.  The  presumption  is  not 
confined  to  a  gift  by  writing ;  it  arises  in  a  parol  gift.  The  assertion  of  dominion 
by  the  father  relates  to  that  over  the  ]>roperty  itself,  and  not  merely  over  the 
paper  title  :  Johnson  v.  Griffin,  80  Geo.  551,  modifying  Jones  v.  Clark,  59  Geo. 
136.  In  Walsh  v.  Mclntire,  68  Md.  402,  it  was  held  '"'that  a  party  cannot  acquire 
a  title,  which  is  maintainable  at  law,  by  parol  gift  fullowed  by  actual  possession, 
no  matter  how  long  and  exclusively  continued."  Contra,  Davis  v.  Bowmar,  55 
Miss.  671. 

That  a  party  going  in  possession  under  a  parol  gift  may  obtain  possession  by 
adverse  possession,  see  Thompson  v.  Thompson,  20  S.  W.  Rep.  373;  Spradlin  v. 
Spradlin,  18  S.  W.  Rep.  14 ;  Davis  v.  Davis,  68  Miss.  478. 


Gift  of  Real  Estate.  393 

thing  like  that "  to  the  premises  ;  that  her  uncle  paid  the 
family  expenses  before  and  during  the  twenty  years,  she 
claiming  she  was  the  owner  of  the  land  till  he  died  ;  that 
he  paid  for  insurance,  water-rates,  repairs,  and  taxes, 
which  were  assessed  to  him,  and  afterward  to  his  heirs  ; 
and  that  sisters  and  uncles,  who  acknowledged  his  owner- 
ship), occupied  part  of  the  premises  rent  free  before  and 
after  she  took  possession,  one  of  whom,  as  alleged  donor's 
agent,  collected  rents  of  certain  tenants,  contracted  for  re- 
pairs, and  paid  therefor  with  money  furnished  by  him ; 
it  was  decided  not  to  authorize  a  finding  that  the  tenant 
acquired  a  title  by  adverse  possession/  Yet  where  there 
was  evidence  of  a  parol  gift,  and  exclusive  possession  by 
the  donee  for  twenty  years,  under  a  claim  of  ownership, 
the  donor  making  no  claim  for  rent  or  otherwise,  the 
donee  moving  and  repairing  the  buildings,  putting  a 
lightning-rod  on  the  house,  rebuilding  fences,  setting 
out  fruit  trees,  employing  men  for  nearly  two  years  in  cut- 
ting off  bushes,  always  j^aying  the  taxes,  frequently  work- 
ing for  the  donor,  and  always  receiving  pay  therefor,  no 
part  being  retained,  or  attempted  to  be  retained,  for  rent 
of  the  premises,  and  the  donor  paying  for  the  pasturage 
of  his  cow  on  the  premises  ;  it  was  held  that  there  was 
evidence  from  which  a  jury  was  justified  in  finding  that 
the  donee  had  title  by  adverse  possession.^ 

384.  Confirming  Gift  by  Will. — It  is  no  uncommon 
thing  for  a  donor  to  confirm  a  gift,  by  the  subsequent  ex- 
ecution of  his  will,  expressly  devising  the  land  given  to 
the  donee.  In  such  an  event,  the  donor  does  what  the 
law  would  have  compelled  him  while  alive  to  do,  or  woukl 
compel  his  heirs  to  do.     He  does  not,  by  the  will,  give  the 

1  Duff  V.  Leary,  146  Mass.  533. 
^  Wheeler  v.  Laird,  147  Mass.  421. 


394  Gifts. 

land  to  the  donee  ;  that  he  has  already  done ;  but  he  gives 
him  the  legal  title,  as  distinguished  from  the  land  itself. 
He  gives  him  no  better  control  over  the  physical  thing 
than  he  gave  before  ;  but  he  simj^ly  clothes  him  with  the 
legal  title  and  nothing  more.^ 

385.  Title  Acquieed  by  Donor  After  Gift  Made. 
— A  donor  had  possession  of  land,  but  no  title  thereto. 
His  right  to  the  land  was  an  inchoate  one,  for  it  was 
government  land ;  but  he  had  reasonable  and  well- 
grounded  hopes,  founded  on  the  laws  of  Congress,  that  his 
title  would  be  made  j^erfect,  and  be  completed,  either  by 
a  donation  from  the  government,  or  by  a  right  of  pre- 
emption. While  thus  in  j^ossession,  he  gave  it  to  the 
donee,  put  him  in  possession,  and  afterward  received  from 
the  government  a  certificate  of  confirmation,  sjDecifying 
the  location  of  the  claims.  Under  these  circumstances  it 
was  held  that  the  donor  could  be  compelled  to  transfer  all 
his  rights  to  the  laud  to  the  donee,  even  before  a  patent 
was  granted.'"^ 

386.  Possession  by  the  Donee  Must  be  Clear. — 
In  order  to  entitle  him  to  relief,  the  donee  must  have 
clear  possession  of  the  land  he  claims.  Indeed,  it  is  said 
that  it  "  must  be  very  clear  and  definite,  such  as  would 
characterize  the  action  of  an  owner  and  be  inconsistent 
with  the  hypothesis  of  a  mere  license ;  for  in  this  class  of 
cases  equity  dispenses  with  a  writing  only  when  definite 
and  unequivocal  facts  exist  which  point  with  certainty  to 
a  prior  parol  agreement  of  gift  or  sale  and  serve  to  indi- 
cate its  existence,  and  so  may  be  taken  as  a  substitute 
for  the  usual  written   evidence."     Consequently  a  mere 

^  Daniel  v.  Frost,  62  Geo.  697.     See  Dunnage  v.  White,  "Wils.  Ch.  67. 
2  Rhodes  v.  Rhodes,  10  La.  85  ;  Burns  v.  Burns,  21  Gr.  Ch.  (U.  C.)  7. 


Gift  of  Real  Estate.  395 

license  to  cut  wood  and  boil  sugar-water  was  held  not  to 
be  such  a  possession  as  the  law  required.^  But  where  a 
father  promised  his  daughter  that  if  she  would  live  with 
and  care  for  his  family  he  would  give  her  his  farm  which 
they  lived  uj^on,  and  he  frequently  declared  that  the  farm 
was  hers ;  and  she  lived  thus  with  him  thirty-eight  years, 
he  apparently  managing  and  running  the  farm  in  his  own 
interest  entirely,  it  was  held  that  she  had  such  a  posses- 
sion as  entitled  her  to  it  at  his  death ;  and  to  require  her 
to  turn  him  out  and  take  an  exclusive  j)OSsession  of  it 
would  be  to  require  her  to  do  an  unnatural  and  unfilial 
thing,  which  the  law  does  not  exact  in  order  to  preserve 
her  rights.^ 

387.  Gift  Incomplete  Without  Possession  Taken — 
Intention  to  Give. — As  in  the  case  of  a  chattel,  the 
donee  must  assume  the  possession  of  the  land  given,  in 
order  to  render  the  gift  valid.  Indeed,  there  must  be  a 
present  intention  on  the  part  of  the  donor  to  give,  a  com- 
plete renunciation  of  his  right  and  dominion  over  the 
land,  without  power  of  revocation,  and  a  full  delivery  of 
the  possession.^ 

388.  Gift  to  Wife  but  Possession  Taken  by  Hus- 
band— Adverse  Possession. — A  wife  cannot  obtain  title 
by  adverse  possession  where  possession  is  claimed  by  her 
husband.  Thus,  the  owner  of  land  gave  it  by  parol  to  a 
married  woman.  She  was  married  at  the  time,  and  she 
and  her  husband  at  once  went  and  lived  on  the  farm  to- 
gether. The  husband  farmed  it  as  his  own,  and  the  wife 
merely  resided  with  him  as  his  wife.  It  was  claimed  that 
she  had  title  by  adverse  possession,  but  the  court  decided 

lOgsbury  v.  Ogsbury,  115  N.  Y.  290;  Griggsby  f.  Osborn,  82  V:i.  371. 

'^Warren  v.  Warren,  105  111.  568. 

'Mims  V.  Eoss,  42  Geo.  121 ;  Beall  v.  Clark,  71  Geo.  818. 


396  Gifts. 

that  if  title  was  obtained  by  such  a  possession,  the  hus- 
band and  not  she  obtained  it.^ 

389.  Donor  Regaining  Possession. — If  the  donor  re- 
gains the  possession  of  the  land  given,  it  may  or  may  not 
operate  as  a  revocation  of  the  gift.  A  temporary  repos- 
session, however,  with  the  consent  of  the  donee,  express 
or  implied  will  not  defeat  the  gift.^  But  if  the  donee 
has  taken  possession,  erected  buildings,  built  im- 
jDrovements,  or  expended  labor  thereon,  so  that  a 
court  of  equity  could  decree  a  specific  performance 
of  the  agreement  between  them  at  the  time  the  donor 
resumed  jDOssession,  then  a  forcible  resumjDtion  of  the 
possession  by  the  donor  will  not  defeat  the  right  of  the 
donee  to  insist  ujDon  the  validity  of  the  gift ;  yet  if  the 
donee  voluntarily  relinquish  the  possession  or  by  some 
act  evidencing  it  acquiesce  therein,  the  donee  will  lose  his 
right  to  insist  upon  the  validity  of  the  gift.  He  Avould, 
however,  in  the  latter  event,  be  entitled  to  recover  the 
value  of  the  improvements,^  unless  he  abandoned  them. 
But  if,  at  the  time  the  donor  forcibly  resumes  the  pos- 
session, a  court  of  equity  would  not  grant  the  donee  a 
specific  performance  of  the  agreement,  then  the  donee  is 
without  relief;  for  the  donor,  by  such  an  act,  has  revoked 
the  gift,  which  he  may  do  at  any  time  before  the  court 
would  grant  the  donee  a  specific  performance  of  the 
agreement.  A  forcible  repossession  by  the  donee,  under 
such  circumstances,  would  not  re-invest  him  with  the 
corpus  of  the  gift.     By  no  act  of  his  can  that  be  done. 

'  Vincent  v.  Murray,  15  N.  B.  375.  This  was  upon  the  theory  that  he  as  her 
husband  was  entitled  to  the  possession  of  her  real  estate;  but  if  her  disabilities 
were  removed,  would  not  their  jointly  living  on  the  property  be  lier  possession  ? 
Is  she  bound  to  live  apart  from  him,  and  on  tlie  land  given,  in  order  to  acquire 
title? 

2  Daniel  r.  Frost,  62  Geo.  607. 

3  See  Duckett  v.  Duckett,  71  Md.  357. 


Gift  of  Real  Estate.  397 

If  the  donee  has  made  improvements,  and  the  donor  re- 
gains the  possession,  he  will  be  required  to  reimburse  the 
donee  for  his  outlay.^  Where  the  gift  was  to  the  wife, 
and  the  husband  put  up  improvements,  the  latter  was 
allowed  to  recover  an  amount  equal  to  the  value  the 
improvements  added  to  the  land,  but  was  not  allowed  to 
recover  for  the  value  of  the  improvements.^ 

390.  Donee  Abandoning  Gift. — It  is  altogether  possi- 
ble for  the  donee  to  abandon  the  gift  after  accepting  it. 
This  is  peculiarly  so  where  the  gift  is  coupled  with  a  con- 
dition, which  the  donee  declines  to  perform  after  yielding 
an  acceptance.  Thus  a  father,  owner  of  one  hundred  acres 
of  land,  with  the  view  of  retaining  his  son  upon  the  prop- 
erty and  settling  him  in  life,  agreed  to  convey  to  him  one- 
half  of  this  land,  for  one-third  of  its  value,  j^ayable  in  six 
years  with  interest,  and  executed  a  bond  for  that  purpose. 
After  obtaining  the  bond,  the  son  w^ent  to  work  about  the 
country,  resided  several  years  at  a  distant  part  thereof, 
sometimes  returning  when  out  of  work  and  residing  in  his 
father's  family,  and  during  such  residence  w^as  in  the  habit 
of  assisting  in  doing  the  usual  work  of  the  farm,  which 
consisted  of  the  one  hundred  acres.  He  paid  no  part  of 
the  purchase-money,  but  claimed  that  he  was  entitled  to 
a  credit  thereon  because  of  services  thus  rendered.  Ten 
years  afterward  he  sought  to  enforce  the  contract,  but  the 
court  decided  that  he  w^as  not  entitled  to  its  enforcement ; 
first,  because  of  his  laches ;  second,  because  he  had  aban- 
doned the  gift."  So  where  a  son  relinquished  his  own 
farm  and  w^ent  to  take  care  of  liis  Either,  at  his  request, 
during  his  life,  upon  the  condition  of  having  the  farm 
given  to  him ;  and  after  remaining  a  few  days,  left  tera- 

^  Hamilton  v.  Hamilton,  5  Litt.  28 ;  Kucker  v.  Abell,  8  B.  Mon.  566. 
'  James  v.  McKinsey,  4  J.  J.  Mar.  625. 
3  Evans  v.  Evans,  2  E.  &  A.  U.  C  156. 


398  Gifts. 

porarily,  and  during  his  absence  liis  son  and  wife  moved 
away,  OAving  to  some  disagreement  between  them  and  the 
donor,  and  the  donee  died  before  he  returned,  it  was  held 
that  the  gift,  although  in  fact  a  contract,  was  inoperative ; 
nor  had  there  been  such  a  part  performance  as  entitled  the 
heirs  of  the  donee  to  have  it  enforced/  So  where  the 
donee  was  to  support  the  donor,  but  went  into  the  army 
and  died,  after  having  supported  him  for  twelve  years; 
and  the  donee's  wife,  unable  to  agree  with  the  donor, 
moved  away  and  left  the  land,  it  was  held  that  she,  on  the 
donor's  death  five  years  after  the  donee's,  and  the  donor 
failing  to  make  a  will  as  he  had  agreed  to,  could  not 
enforce  the  asrreement.'^ 

o 

391.  DoxoR  Incumbering  Land. — While  the  donee  in 
possession  will  be  protected  from  all  acts  of  the  donor  im- 
pairing or  incumbering  his  title,  even  as  against  subse- 
quent grantees  or  execution  creditors;  yet  the  donee  will 
not  be  protected  as  against  a  subsequent  mortgage  given  by 
the  donor,  it  was  held,  of  which  such  donee  had  full  knowl- 
edge, as  also  of  its  foreclosure  and  the  sale  of  the  land 
thereunder,  and  entered  into  negotiations  for  its  redemption 
therefrom,  and  made  no  claim  to  the  mortgagees  of  the  in- 
validity of  their  security  as  against  his  occupancy  or  title.'"^ 

392.  Donor  Reserving  Rent — Taxes  Paid  by 
Donor. — If  the  donor  expressly  reserves  a  yearly  rent, 
for  a  term  or  during  his  life,  this  will  not  necessarily  de- 
feat the  gift.  Neither  does  the  payment  of  taxes  by  the 
donor  defeat  it.  "  The  fact  that  AVilliam  Lucas,"  said  the 
Supreme  Court  of  Illinois,  "  paid  his  father  one-third  of 

1  Black  V.  Black,  2  E.  &  A.  U.  C.  419,  reversing  9  Or.  Ch.  403;  McDonald  r. 
Rose,  17  Gr.  Ch.  657. 

2  Cox  V.  Cox,  26  Gratt.  305. 

'  Potter  V.  Smith,  68  Mich.  212. 


Gift  of  Real  Estate.  399 

the  crojDS  each  year  raised  on  the  land,  and  the  latter  paid 
the  taxes,  does  not  militate  against  his  right  to  a  decree. 
Had  the  payment  of  rent  been  unexplained,  a  different 
question  would  have  arisen,  but  it  appears,  from  the  testi- 
mony, to  have  been  a  part  of  the  contract,  that  one-third 
of  the  crops  should  go  to  the  father  during  his  life,  and 
he  was  to  pay  the  taxes,  and  at  his  death,  the  absolute 
title  should  vest  in  the  son.  The  payment  of  rent, 
therefore,  in  this  case,  does  not  establish  the  relation  of 
landlord  and  tenant  between  the  parties  and  tend  to  prove 
that  William  Lucas  was  not  occupying  as  a  purchaser,  but, 
on  the  other  hand,  the  payment  of  rent  was  consistent 
with  the  contract  under  which  William  Lucas  entered 
into  possession  of  the  land."  ^ 

393.  Payment  of  Taxes. — The  payment  of  taxes  as- 
sessed against  the  land  given  is  always  a  significant  factor, 
of  more  or  less  weight  according  to  the  circumstances  of 
each  case.  Thus  where  the  taxes  were  assessed  against 
the  land  in  the  name  of  the  donor,  the  fact  of  the  assess- 
ment in  this  way  was  deemed  insignificant ;  ^  but  the  fact 
that  the  donee  paid  these  taxes  many  years  was  considered 
to  be  "  a  fact  of  much  significance  bearing  upon  the  char- 
acter of  his  possession.  The  inference  to  be  drawn  from 
the  fact  is  a  strong  one  that  all  parties  understood  that 
the  owners  of  the  land  should  pay  the  taxes  and  bear  the 
burdens  charged  upon  it."  ^ 

394.  Relationship  of  Doxor  and  Donee. — Ties  of 
blood  existing  between  the  donor  and  donee  are  not  neces- 

1  McDowell  V.  Lucas,  97  III.  489;  Smith  v.  Yocum,  110  111.  142;  Wcrtz  v.  Mer- 
ritt,  74  la.  683  ;  Wamsley  v.  Lincicura,  GS  la.  550  ;  Love  v.  Francis,  G3  Midi.  182. 

^  In  fact  in  some  States  taxes  in  such  an  instance  of  a  parol  gift  would  always 
be  so  assessed  until  a  deed  to  the  donee,  or  some  one  else,  was  put  on  record. 

^  Fairfield  v.  Barbour,  51  Mich.  57 ;  Davis  v.  Bowmar,  55  Miss.  671. 


400  Gifts. 

sary  to  support  tlie  gift,  altliougli  these  are  often  potent 
factors  in  proving  it.^ 

395.  Gift  by  a  Married  AVoma:n" — Infant. — A  mar- 
ried woman  cannot  make  a  parol  gift  of  her  land  even  if 
her  husband  join  therein.  There  is  only  one  way  in 
which  she  can  divest  herself  of  her  land,  and  that  is  by 
deed  in  which  her  husband  joins  ;^  but  after  the  sale 
of  her  lands  she  may  make  a  gift,  even  to  her  hus- 
band, of  the  jmrchase-money.^  So  a  gift  by  a  minor 
of  his  lands  cannot  be  enforced,  and  his  declarations 
to  that  effect  are  not  admissible  in  evidence  against 
him.* 

396.  Donee  Must  Show  a  Definite  Promise — Must 
Sho\v  Land  Given. — The  donee,  or  those  claiming  under 
him,  has  the  burden  of  showing  not  only  a  promise  to 
convey,  but  a  promise  that  is  clear  and  certain  in  its 
terms.^  In  another  case  from  the  same  State  it  is  said 
that  "  the  contract  should  be  established,  by  competent 
]U'oof,  to  be  clear,  definite,  and  unequivocal  in  all  its 
terms.  If  the  terms  are  uncertain  or  ambiguous,  or  not 
made  out  by  satisfactory  j^roofs,  a  specific  performance 
will  not  be  decreed."  ^  The  terms  and  conditions  of  the 
contract  "  must  be  clear  and  free  from  all  ambiguity  and 
doubt." '^  "The  gift  must  be  definite  in  its  terms  and 
clearly  proved.  There  must  be  no  uncertainty  or  equivo- 
cation about  it."  ^ 

1  Porter  v.  Allen,  54  Geo.  623 ;  Ackerman  v.  Fisher,  57  Pa.  St.  457. 

2  Huffman  v.  Huffman,  118  Pa.  St.  58. 
'  McGinnis  v.  Curry,  13  W.  Va.  29. 

*  Harvey  v.  Carroll,  72  Tex.  63. 

^Langston  v.  Bates,  84  111.  524;  S.  C.  25  Am.  Rep.  466. 

6  Worth  u  Worth,  84  111.  442;  Stanton  r.  Miller,  58  N.  Y.  192. 

'Murphy  V.  Stell,  43  Tex.  123. 

^Griggsby  v.  Osbom,  82  Va.  371 ;  Halsey  v.  Peters,  79  Va.  60. 


Gift  of  Real  Estate.  401 

397.  Land  Givek- — Boundakies. — Where  the  gift  is 
by  deed,  there  is  usually  no  difficulty  in  showing  the  ex- 
act land  given  ;  but  where  it  is  by  parol,  there  sometimes 
is,  especially  where  it  is  a  part  of  a  tract  owned  by  the 
donor.  The  rule  is  that  the  donee  must  show  the  subject 
of  the  gift,  with  reasonable  certainty.  It  is  not,  however, 
necessary  that  lines  of  separation  should  be  actually  run 
upon  the  ground,  if  from  the  transaction,  and  the  distinct 
subsequent  possession  of  the  donee,  it  is  possible  to  ascer- 
tain the  boundaries  and  quantity  of  the  land  given  ;  or, 
in  other  words,  the  j^i'oof  must  be  such  as  to  enable  the 
jury  or  court  to  fix  the  locality  and  boundaries  so  as  to 
direct  where  a  surveyor  may  divide  it  off  from  the  rest  of 
the  donor's  land.  If  the  tract  given  has  well  defined 
boundaries,  even  though  adjoining  the  donor's  own  land, 
and  is  known  by  a  certain  name,  then  the  gift  of  the  tract 
by  name,  followed  by  possession,  is  sufficient.  If  it  is  a 
certain  quantity  out  of  a  larger  tract,  then  the  possession 
of  a  tract  equal  in  quantity  to  the  amount  given  will  de- 
termine the  boundaries,^  A  failure  to  show  the  boundaries 
or  limits  of  the  lot  will  defeat  the  gift."  Even  uncertainty 
in  this  respect  will  defeat  it ;  ^  but  they  need  not  be  fixed 
at  the  time  of  the  gift,  if,  by  act  or  word,  the  donor  de- 
fines them  afterward,  such  as  erecting  fences  and  the  like. 
In  the  case  of  a  gift  to  the  public,  however,  courts  will  do 
their  utmost  to  render  the  gift  valid,  going  further  than  in 
the  case  of  an  individual.* 

398.  Sufficiency  of  Evidence  to  Establish  the 
GriFT. — The  lanfiruao-e  of  the  courts  is  not  the  same  in  de- 
finins:  or  declaring:  what  will  be  sufficient  evidence  to 

1  Burns  v.  Sutherland,  7  Barr,  103 ;  Moore  r.  Small,  19  Pa.  St.  461. 
'Short  V.  M.  E.  Church,  11  La.  Ann.  174. 
3  M:irtin  v.  McCord,  5  Watts,  493. 
*McLain  r.  White  Township,  51  Pa.  St  196. 
26 


402  Gifts. 

establish  the  gift  of  land  by  parol.  Says  the  Maryland 
Supreme  Court :  "The  proof  must  be  clear,  definite,  and 
conclusive  as  to  the  fact  of  the  gift,  and  those  acts  done  on 
the  faith  of  it  which  render  inequitable  any  attempt  by 
the  donor  to  avoid  the  gift.  But  where  the  j^roof  is  thus 
clear,  and  all  other  conditions  are  shown  to  exist  to  entitle 
the  party  to  the  assistance  of  a  court  of  equity,  that  court 
will  not  hesitate  to  lend  its  aid,  simply  because  the  proof 
may  rest  entirely  in  parol."  ^  "A  contract,"  says  the 
Supreme  Court  of  Illinois,  "  to  convey  should  be  clear 
and  certain  in  its  terms,  and  established  by  testimony  of 
an  undoubted  character,  which  is  clear,  definite,  and  un- 
equivocal." ^  "  The  party  setting  up  such  promise  must  be 
able  to  establish  it  by  full,  clear,  and  satisfactory  evi- 
dence." ^  In  a  Pennsylvania  case  it  was  said  that  "  the 
rule  is  settled,  that  as  between  father  and  child  the  evidence 
of  a  gift  or  sale  must  be  direct,  positive,  express,  and  un- 
ambiguous ;  that  its  terms  must  be  clearly  defined,  and 
that  all  the  acts  necessary  to  its  validity  must  have  special 
reference  to  it,  and  nothing  else."*  AVhere  the  contest  is 
between  father  and  son,  or  between  the  son  and  the  heirs 
of  the  father,  stronger  evidence  is  required  of  the  father's 
intention  to  part  with  the  ownershij)  of  the  property  than 
is  required  in  cases  of  parol  contracts  between  strangers 
in  blood.^  "  There  are  obvious  reasons  for  this  distinc- 
tion. The  circumstances  of  families  are  subject  to  con- 
stant changes.  The  pecuniary  relations  between  a  father 
and  his  several  children  may  shift  not  only  from  year  to 

^Hardesty  v.  Richardson,  44  Md.  617;  S.C.  22  Am.  Eep.  57;  Dawson  r.  Mc- 
Faddin,  22  Neb.  131. 

2  Langston  i;.  Bates,  84  111.524;  P.  C.  25  Am.  Kep.  466;  Worth  r.  Worth,  84  111. 
442;  Woodbury  v.  Gardner,  08  Me.  167. 

=*  Murphy  V.  Stell,  43  Tex.  123. 

^Shellhammer  v.  Ashbaugh,  83  Pa.  St.  24 ;  S.  C.  34  Leg.  Int.  67. 

'"  Ackerman  i'.  Fisher,  57  Pa.  St.  457. 


Gift  of  Real  Estate.  403 

year,  but  from  month  to  month.  The  jDromise  to  give  an 
estate  to  a  child  may  have  been  founded  on  reasons  in- 
volving anticij)ations  never  realized  or  j^lans  never  exe- 
cuted. Financial  embarrassment,  or  increase  in  the  num- 
ber of  the  members  of  the  family,  the  intervention  of  new 
duties,  or  the  misconduct  of  the  child  may  justify  a 
change  in  the  father's  purpose."  ^  "  Nothing  is  more  com- 
mon," it  is  said  in  another  case,  "  than  that  a  father 
speaks  of  a  farm  on  which  he  has  placed  his  son  to  live, 
as  the  son's  house.  It  is  an  every  day's  occurrence  that  a 
father  speaks  of  having  given  a  lot  of  ground  to  a  son, 
when  it  was  plain  there  was  no  intention  to  transfer  the 
ownership.  And  such  language  is  not  confined  to  parol 
gifts.  When  a  father  says,  I  sold  such  a  piece  of  real 
estate  to  my  son,  he  generally  means  no  more  than  that 
he  agreed  the  son  might  have  it  for  a  consideration."  ^ 
Probably  such  a  strict  rule  does  not  always  obtain  a  foot- 
hold. Thus  it  has  been  said  that  was  only  necessary  to 
make  out  the  transaction  with  "  reasonable  certainty."  ^ 
This  was  said,  however,  of  a  transaction  partaking  both 
of  the  nature  of  a  contract  and  a  gift ;  and  a  case  of  a 
contract  purely  was  cited  to  support  it.^  In  New  York 
it  is  said  that  the  proof"  should  be  very  definite  and  cer- 
tain to  serve  as  a  basis  for  that  equitable  relief  or  j^rotec- 
tion  which  dispenses  with  a  writing  and  disregards  the 
statute  of  frauds."  ^  In  Georgia  the  following  rule  was 
announced,  as  the  result  of  an  examination  of  the  cases  : 

^Shellliammer  v.  Aslibaugh,  supra;  Printup  v.  Mitchell,  17  Geo.  -558. 

2  Ackerman  r.  Fisher,  supra;  Ackerman  v.  Ackerman,  24  N.  J.  Eq.  315;  af- 
firmed lb.  585. 

^j^ealev.  Neale,  9  AVall.  1. 

*  Lester  v.  Foxcroft,  1  Colle's  P.  C.  lOS  ;  S.  C.  2  Vern.  nom.  Foxcraft  r.  Lister, 
Gilb.  Rep.  4;  Prec.  Ch.  516,  526,  nom.  Leicester  v.  Foxcraft,  1  L.  C.  Eq.  768; 
Mondy  v.  Jolliffe,  5  Mjl.  &  Cr.  167,  177. 

^Ogsbury  r.  Ogsburj,  115  X.  Y.  290  ;  Griggsby  i'.  Osborn,  82  Va.  371  ;  Halsey 
V.  Peters,  79  Va.  60. 


404  Gifts.     . 

"  While  it  is  not  indispensable  that  the  agreement  should 
be  established  wholly  by  direct  and  positive  evidence  of 
its  existence,  and  while  it  may  be  inferred  from  acts  and 
conduct  clearly  referable  to  it,  yet  such  acts  must  be  of 
an  unequivocal  and  unambiguous  character,  and  must  be 
established  by  testimony  clear,  definite,  and  unambiguous 
in  its  terms."  ^  And  the  court,  quoting  from  a  previous 
case,^  says  that  the  agreement  "  should  be  made  out  so 
clearly,  strongly,  and  satisfactorily  as  to  leave  no  reason- 
able doubt  as  to  the  agreement."  ^ 

399.  DoxEE  Must  Show  That  He  Made  Impkove- 
MENTS  OK  Expended  Labor  Thereon. — The  burden  is 
upon  the  donee  to  show  that  he  either  made  improvements 
upon  the  land  given  or  performed  labor  thereon,  to  such 
an  extent  that  it  would  be  inequitable  to  not  permit  him 
to  claim  the  land  as  his  own.'^  Not  only  must  he  shoAV 
that  he  made  improvements,  but,  where  there  is  an  agree- 
ment for  a  certain  kind,  he  must  show  that  he  jDut  such 
kind  upon  the  land.^ 


5 


400.  Declaration  of  the  Donor  to  Prove  or  Dis- 
prove Gift. — The  subject  of  declarations  of  the  donor  to 
prove  or  disprove  a  parol  gift  of  land,  or  even  a  gift  by 
deed  or  other  instrument,  has  been  treated  at  length  else- 
where ;   but  it  is  proper  that  something  be  said  of  this  sub- 


^  Beall  V.  Clark,  71  Geo.,  p.  818  ;  PouUain  v.  Poullain,  79  Geo.,  p.  11. 

"^  Printup  V.  Mitchell,  17  Geo.  558. 

3  See  Miller  v.  Gotten,  5  Geo.  341  ;  Russell  v.  Switzer,  63  Geo.  711.  See  Tru- 
man V.  Truman,  79  la.  506.  Gift  of  a  mining  claim,  what  is:  see  Richardson  v. 
McNulty,  24  Cal.  339. 

*  Stewart  v.  Stewart,  3  Watts,  253  ;  Bright  v.  Bright,  41  111.  07  ;  Griggsby  v.  Os- 
born,  82  Va.  371  ;  McDowell  r.  Lucas,  97  111.  489. 

^  Ackerraan  v.  Ackerman,  24  N.  J.  315  ;  affirmed  lb.  585;  Frame  v.  Frame,  32 
W.  Va.  463. 


Gift  of  Real  Estate.  405 

ject  in  this  connection.  The  declarations  of  the  donor  of 
an  intention  to  give  the  land  at  some  future  time,  his  dec- 
larations at  the  alleged  time  of  the  gift,  and  his  subsequent 
declaration  in  favor  of  it,  are  all  admissible  to  prove  the 
gift.  What  was  said  at  the  time  of  the  gift,  which  con- 
stitutes the  res  gestw,  is  admissible  whether  establishing  or 
disproving  the  gift.  But  the  declarations  of  the  donor 
made  after  the  time  of  the  alleged  gift  are  not  admissible 
to  disprove  it.  He  cannot  thus  build  up  title  in  himself/ 
Nor  can  it  be  shown  that  the  donor,  after  the  gift,  in- 
cluded the  land  in  a  list  of  his  property  as  his  own.^  But 
declarations  of  ownership  in  the  jDresence  of  the  donee  are 
admissible.^ 

401.  Acts  and  Conduct  of  Donor  and  Donee. — 
The  acts  and  conduct  of  the  donor  and  donee  are,  with 
reference  to  the  thing  given,  always  the  subjects  of  inves- 
tigation, with  the  limitation  that  an  act  of  the  donor  per- 
formed subsequent  to  the  time  of  making  the  gift,  in  dis- 
paragement of  the  donee's  title,  not  performed  in  the  pres- 
ence of  the  donee,  may  not  be  shown  to  defeat  the  gift.  In 
fact,  a  parol  gift  of  land  may  be  inferred  from  acts  of  an 
unambiguous  and  unequivocal  character.*  There  are  many 
cases  supporting  the  general  rule  of  this  section.^  The 
character  of  the  possession  of  the  donee  is  always  the 
subject  of  investigation,  and  the  acts  of  the  parties  with 
reference  to  such  possession  necessarily  after  the  gift  is 

1  Porter  v.  Allen,  54  Geo.  623;  Hughes  v.  ITiiRhes.  72  Geo.  173;  Davis  v.  Bow- 
mar,  55  Miss.  671 ;  Warren  v.  Warren,  105  111.  568,  572. 

^Duff !).  Lenry,  146  Mass.  533. 

^Hugus  V.  Walker,  12  Pa.  St.  173  Evidence  of  an  old  French  custom  of  the 
early  settlers  of  Detroit  to  give  their  farms  to  their  eldest  son  is  not  admissible 
to  establish  such  a  gift  in  a  particular  case,  where  no  direci  evidence  of  a  gift  has 
been  given  :  Oilman  v.  Rinpelle,  18  Mich.  145. 

*Poullain  v.  PouUain.  76  Geo.  420;  Ferry  v.  Stephens,  66  N.  Y.  321. 

^  Warren  i-. Warren,  105  Til.  568  ;  Davis  v.  Bowmar,  55  Miss.  671 ;  Jones  v.  Clark, 
59  Geo.  136 ;  Hughes  v.  Hughes,  72  Geo.  173. 


406  Gifts. 

made  are  always  admissible,  with  the  limitation  above 
stated.  But  the  treatment  at  any  time  by  the  donor  and 
donee,  jointly,  of  the  estate  is  always  admissible;  for  it  is 
in  the  nature  of  an  admission  by  the  donee  or  donor,  as 
the  case  may  be. 

402.  When  Donee  Takes  Land  Without  the  In- 
cumbrance Thereon. — A  donee  of  land  incumbered  takes 
it  without  the  incumbrance  thereon  ;  and  if  he  pays  the 
incumbrance  he  can  recover  the  amount  paid  from  the 
donor  or  his  estate.  Thus  where  a  father  promised  his 
daughter  to  give  her  an  estate  upon  her  marriage,  and 
afterward  he  did  so,  giving  her  an  incumbered  estate, 
which  incumbrance  she  was  compelled  to  jDay  off,  it  w\^.s 
held  that  she  was  entitled  to  file  a  claim  against  her 
father's  estate  for  the  amount  paid  with  interest.^  But, 
of  course,  the  donor  may,  by  express  words  or  the  like, 
give  the  land  subject  to  the  incumbrance ;  or  make  it 
a  condition  of  the  gift  that  the  donee  procure  its  dis- 
charge. 


■&' 


403.  When  Donee  Acquires  a  Title  to  the  Land 
Given — Judgment  Lien. — It  is  a  question  of  some  im- 
portance to  ascertain  just  when  the  donee  acquires  a  title 
to  the  land  given,  or  when  the  title  becomes  vested  in  him. 
Until  a  gift  is  completed  the  title  remains  in  the  donor  ; 
and  a  judgment  against  him  is  a  lien  on  the  land.  The 
gift  is  completed,  however,  the  earliest  moment  at  which 
the  donee  can  compel  the  donor  to  give  him  a  deed  for 
the  property.  Thus  where  the  gift  w^as  made  (by  parol) 
in  1865,  a  judgment  taken  against  the  donor  in  1867, 
and  the  land  levied  ujDon,  under  this  judgment,  and  sold 

^Ungley  v.  Ungley,  4  Cli.  Div.  73;  S.  C.  46  L.  J.  Ch.  189;  25  W.  R.  30;  35 
L.  T.  N.  S.  619  ;  19  Moak.  678  ;  affirmed  5  Ch.  Div.  887  ;  S.  C  46  L.  J.  Ch.  854 ; 
25  W.  R.  733 ;  37  L.  T.  N.  S.  52. 


Gift  of  Real  Estate,  407 

in  1873,  the  sale  was  held  valiJ.^  But  if  the  title  has 
23assed,  a  judgment  taken  thereafter  is  not  a  lien  on  the 
land  ;  nor  has  the  administrator  of  the  deceased  donor,  or 
his  widow  for  her  support,  any  interest  in  the  land.^  So  a 
judgment  against  the  donee  is  no  lien  on  the  land  until 
he  has  acquired  title  to  it.^ 

404.  Rights  of  Creditors  of  Donee. — No  one  is 
authorized  to  give  a  donee  credit  upon  the  mere  fact  of 
the  latter  being  in  possession  of  the  land  claimed  to  have 
been  the  subject  of  the  gift.  He  must  act  at  his  peril. 
But  if  he  go  to  the  alleged  donor  before  advancing  any- 
thing of  value  upon  the  faith  of  the  donee's  possession 
and  is  informed,  upon  inquiry,  by  the  donor  that  the 
property  is  that  of  the  donee,  then  he  may  rely  upon 
such  statement  and  fully  credit  the  donee  ;  for  the  donor, 
as  against  such  j^erson  and  those  claiming  under  him, 
will  be  estopped  to  deny  the  donee's  title.* 

405.  Kind  of  Action — Ejectment — Trespasses — 
Trial  by  Jury. — Many  of  the  cases  touching  the  validity 
of  a  parol  gift  of  land  have  been  cases  brought  to  enforce 
a  specific  performance  of  the  contract  of  gift  by  the  donee 
against  the  donor  or  his  heirs.  This,  of  course,  is  in  a 
court  of  equity.  In  many  other  instances  the  donor 
brought  an  action  of  ejectment,  and  under  the  codes  the 
donee  was  allowed  to  defend  the  same  as  if  he  had  the 
legal  title ;  while  in  others  there  was  an  application  for  a 
stay  of  proceedings  until  a  court  of  equity  could  be  ap- 
pealed to  for  relief;  and  still  in  others  a  bill  for  a  specific 
performance  was  allowed,  under  the  code,  as  an  answer  or 

'  Jones  V.  Clark,  59  Geo.  136 ;  Hughes  v.   Berrien,  70  Geo.  273  ;  Johuson  v. 
Griffin,  80  Geo.  551. 

2  Ilnj^hes  V.  Hughes,  72  Geo.  173. 
'  Harvey  v.  West,  87   Geo.  553. 
*  Hugus  i;. Walker,  12  Pa.  St.  173. 


408  Gifts, 

cross-bill  to  the  declaration  or  complaint.^  The  practi- 
tioner will  have  no  trouble  in  determining  the  relief  to 
seek  in  his  own  particular  State.  A  donee  in  possession, 
however,  even  in  a  State  where  he  can  acquire  no  title 
as  against  the  donor,  may  maintain  ejectment  against  a 
stranger  or  an  action  for  damages  against  any  one  (except- 
ing the  donor  where  he  acquires  no  title  as  against  him) 
who  commits  waste  or  damages  the  land  given.^  The 
jury,  on  such  trial,  are  to  determine  whether  the  facts, 
proved  sufficiently,  establish  a  gift.^ 

406.  Compensation  in  Damages. — Where  the  position 
of  the  donee  is  such  that  he  can  be  adequately  compen- 
sated in  damages,  the  donor  may  reclaim  possession  of  the 
land,  and  a  bill  for  specific  performance  will  not  lie  in 
behalf  of  the  donee.*  But  upon  this  point  there  is  such  a 
wide  discussion  in  the  reports  that  we  cannot  afford  to 
enter  upon  the  question,  esi^ecially  as  it  lies  beyond  the 
plan  of  this  work.  We  cannot  refrain,  however,  from 
making  a  quotation  from  a  Georgia  case,  viz. :  "All  the 
courts  require  is  proof  of  the  agreement,  and  that  it  has 
been  so  far  partly  executed  as  to  let  the  purchaser  into 
the  possession  under  it,  and  that  he  has  made  valuable 
improvements  on  the  land,  and  a  performance  will  be 
decreed.  To  allow  parties,  in  avoidance  of  this  rule,  to 
go  farther  and  inquire  whether  injury  has  in  fact  resulted, 
or  whether  the  corresponding  benefits  already  received 
have  not  fully  compensated  for  the  change  of  possession 
and  improvements,  in  order  to  bring  the  case  back  within 
the  operation  of  the  statute,  would  be  to  inaugurate  an 

'  Howell  V.  EUsberry,  79  Geo.  475. 

^Trammell  v.  Simmons,  17  Ala.  411;  Badger  v.  Lyon,  7  Ala.  564;  Conn  v. 
Prewitt,  48  Ala.  636. 

3  Burns  v.  Sutherland,  7  Barr,  103;  Moore  v.  Small,  19  Pa.  St.  461. 
*  Moore  v.  Small,  19  Pa.  St.  461. 


Gift  of  Real  Estate.  409 

entirely  new  rule  on  this  subject  and  add  greatly  to 
the  complication  of  this  already  embarrassing  question, 
and  would  be  wholly  changing  the  rights  of  the 
parties  under  the  agreement.  Such  an  inquiry  would 
always  arise  in  those  cases  where  a  bare  possession 
is  relied  upon  to  take  the  case  out  of  the  statute ;  and 
that  has  always  been  held  to  be  sufficient  for  that 
purpose,  yet  the  inquiry  never  has  been  gone  into, 
or  if  so,  has  universally  been  disallowed  by  the  courts. 
The  question  of  compensation  in  lieu  of  specific  perform- 
ance has  been  considered,  and  while  the  court  of  equity 
has  regretted,  when  it  was  practicable,  that  it  had  not 
been  adopted,  rather  than  that  of  specific  performance,^ 
yet  the  rule  was  too  well  settled  to  admit  of  it,  except 
only  in  those  cases  where  payments  of  the  purchase- 
money  was  relied  on  as  part  performance ;  and  I  take  it, 
that  the  reason  of  that  is  that  when  the  thing  done  is  the 
payment  of  money,  that  can  always  be  measured,  and  its 
exact  equivalent  returned,  and  when  the  possession  is 
changed  or  improvements  made,  the  value  of  these  things 
must  always  be  matters  of  opinion  merely,  and  cannot  be 
measured  or  exactly  ascertained  so  as  to  certainly  put  the 
party  making  them  in  the  same  condition  he  was." 
"  There  is  another  reason  that  occurs  to  me  as  entitled  to 
much  consideration,  in  opposition  to  the  principle  insisted 
upon  here,  though  I  have  not  seen  it  in  the  books — tliat 
is,  when  a  party  has  placed  himself  in  a  position  to  ask 
specific  performance,  either  by  possession  or  improvement, 
the  thing — that  is,  the  land — is  his,  or  at  least  he  is  en- 
titled to  a  conveyance,  to  a  specific  performance,  at  that 
time,  and  the  rents,  profits,  issues  or  benefits  accruing  to 
him  from  its  use  and  occupation  from  that  time  are  his, 
and  not  that  of  the  vendor  or  donor ;    and  when  he  is 

'  Citing  Forster  v.  Hale,  3  Vesej,  696. 


410  Gifts. 

asked  or  required  to  appropriate  these  things  or  benefits 
in  compensation  for  his  labor,  improvements,  or  expenses, 
he  is  asked  or  required  to  compensate  himself  with  that 
which  is  his  own,  and  for  which  he  is  su2:)posed  to  have 
entered  into  the  agreement."  ^ 

407.  Doj^EE  Entitled  to  Recover  for  Improve- 
ments.— Where  the  donee  cannot  acquire  title  under  a 
parol  gift,  he  is  entitled  to  recover  the  value  of  the  im- 
provements he  puts  upon  the  land.  The  rule  has  been 
stated  thus,  referring  to  a  j^articular  instance :  "  But  as 
the  son  had  taken  possession  of  the  land  under  the  verbal 
gift,  and  made  valuable  improvements  thereon,  under  the 
expectation  created  by  the  act  of  the  father,  that  the  gift 
would  be  consummated,  he  is  in  equity  entitled  to  pay  for 
those  improvements,  and  has  a  lien  u23on  the  land  to 
secure  the  payment  of  their  value.  This  lien  would  exist 
against  the  donor,  and  is  valid  against  creditors.  But 
its  amount  must  be  determined  by  deducting  from  the 
value  of  the  improvements  a  reasonable  compensation  for 
the  use  of  the  land."  ^  So  if  the  gift  for  some  reason  was 
incomplete,  but  the  donee,  relying  upon  the  assurance  of 
the  donor  and  thereby  having  been  misled,  puts  on  valu- 
able improvements,  he  will  be  entitled  to  recover  their 
value  and  have  the  amount  thereof  declared  a  lien  upon 
the  land,  with  the  exceptions  above  noted. 

^Mims  V.  Lockett,  33  Geo.  9  ;  Warren  v.  AVarrcn,  105  111.  508;  Waterman  on 
Sp.  Perf.,  sects.  14,  15. 

2  Rucker  v.  Abell,  8  B.  Hon.  566  ;  Duckett  v.  Duckett,  71  Md.  357  ;  Ridley  ?-. 
McNairy,  2  Humph.  174 ;  Humphreys  v.  Holtsinger,  3  Sneed,  228  ;  Ewing  v. 
Handley,  4  Litt.,  p.  346. 


CHAPTEK  XY. 


VOLUNTARY    TRUSTS. 


408.  Introduction. 

409.  Gift  Failing  for  Lack  of  Convey- 

ance is  Invalid  as  a  Declaration 
of  Trust. 

410.  Imperfect  Gift  Cannot  be  Construed 

a  Trust. 
41L  Not  to  be  Confounded  with  Convey- 
ance for  a  Valuable  Considera- 
tion. 

412.  Trust  must  be  Completed  by  Donor. 

413.  Donor  Constituting  Himself  a  Trus- 

tee for  the  Donee. 

414.  Sufficiency  of  Language  to  Create  a 

Trust. 

415.  Donor  Must  Part  Absolutely  with 

His  Interest  in  the  Property. 

416.  Donor  Must  Part  with  Plis  Domin- 

ion Over  Gift — Assistance   of  a 
Court  of  Equity. 

417.  Mere  Intent  to  Create  a  Trust  is  Not 

Sufficient. 
413.  Trust   IMust   be   Certain,   and  Not 
Rest  in  Intention  or  Promise — 
Mere  Intent. 

419.  Donor    Must    Have     Intended    to 

Create  a  Trust. 

420.  Difference  Between  an  Assignment 

and  a  Declaration  of  Trust. 

421.  When  Trust  is  Completed. 

422.  Parol  Declaration  Accompanied  by 

Acts. 

423.  Donor  Retaining  Deed  and  Failing 

to  Deliver  It — Failure  to  Com- 


municate    with    Trustee    and 
Donee. 

424.  Donor  Unlawfully  Obtaining  Pos- 

session of  Deed  of  Trust. 

425.  Delivery   of    Subject-Malter    of 

Gift. 

426.  Notice  to  Donee  or   Trustee  of 

Trust. 

427.  Donor  Divesting  Himself  of  the 

Legal  Title. 

428.  Donee  Divesting  Himself  of  the 

Equitable  Title. 

429.  Failure  to  Name  Beneficiary. 

430.  Deed  of  Gift  as  a  Testamentary 

Instrument. 

431.  Necessity  for  Instrument  of  Gift 

to  be  Under  Seal. 

432.  Donee  Induced    to    Change  His 

Situation  by  Promise  of  Donor 
to  Give. 

433.  Orders  Addressed  by  a  Creditor  to 

His  Debtor  or  to  a  Depositary 
of  a  Fund. 

434.  Covenant  to  Give  Upon  a  Contin- 

gency. 

435.  Donor    Reserving   Control  Over 

Trust  Fund  as  Trustee. 

436.  Revocation. 

437.  Preventing  the  Making  of  a  Gift 

by  Will. 

438.  Good  or  Meritorious  Considera- 

tion. 

439.  Marriasre  Settlement. 


408.  Introduction. — The  subject  of  voluntary  trusts 
is  one  not  unfree  of  difficulties,  OAving  to  the  many  con- 
Upon  the  general  princij^les  applicable  to 

411 


flictmg  cases 


412  Gifts. 

this  kind  of  trusts,  there  is  but  little  conflict ;  but  it  is 
upon  their  apjDlication  to  particular  facts  or  transactions 
where  the  conflict  arises.  The  subject,  ho^Yeyer,  naturally 
divides  itself  into  two  branches :  First.  Where  a  donor 
has  conveyed,  or  attempted  to  convey  or  give  property  to 
a  trustee  for  the  benefit  of  a  designated  donee ;  Second. 
Where  the  donor  has,  by  some  act  or  instrument  in  writ- 
ing, constituted  himself  a  trustee  for  the  beneficiary  or 
donee.^ 

409.  Gift  Failing  for  Lack  of  Conveyance  is 
Invalid  as  a  Declaration  of  Trust. — One  rule  is  of 
universal  application,  however,  to  questions  of  this  kind ; 
and  that  is  that  if  the  transaction  is  insufficient  to  create 
a  trust  in  a  designated  person  as  trustee  for  the  donee,  it 
cannot  be  upheld  as  a  true  gift  (by  regarding  the  transac- 
tion as  sufficient  to  hold  the  donor  as  a  trustee) .  Thus  if 
A  undertakes  to  create  a  trust  by  delivering  the  property 
to  B  as  trustee  for  C,  and  the  transaction  fail  for  lack  of  a 
sufficient  delivery,  the  transaction  cannot  be  upheld  as  a 
trust  by  regarding  A  as  having  constituted  himself  as  a 
trustee  for  C.  To  do  so  would  be  to  uphold  a  gift  where 
there  was  no  sufficient  delivery,  and  thus  to  override  one 
of  the  cardinal  rules  of  gifts.  Said  Lord  Justice  Turner : 
"  The  cases,  I  think,  go  further,  to  this  extent,  that  if  the 
settlement  is  intended  to  be  effectuated  by  one  of  the 
modes  to  which  I  have  referred,  the  court  will  not  give 
effect  to  it  by  applying  another  of  those  modes.  If  it  is 
intended  to  take  effect  by  transfer,  the  court  will  not  hold 
the  intended  transfer  to  operate  as  a  declaration  of  trust, 
for  then  every  imperfect  instrument  would  be  made  effect- 
ual by  being  converted  into  a  perfect  trust." ^ 

^Richards  r.  Delbridge,  18  L.  R.  Eq.  11 ;  S.  C.  43  L.  J.  Ch.  459;  22  W.  R. 
584. 

^Milroy  v.  Lord,  4  D.  F.  &  J.  264,  274;  S.  C.  7   L.  T.  N.  S.  178;  Richards  v. 


Voluntary  Trusts.  413 

410.  Impeefect  Gift  Cannot  be  Constetjed  a  Teust. 
— If  a  transaction  shows  that  the  donor  intended  to 
make  a  gift,  but  by  reason  of  some  essential  step  it  fails, 
the  transaction  cannot  then  be  construed  as  creating  a 
trust.  A  court  of  equity  cannot  convert  an  imjDerfect 
gift  into  a  declaration  of  trust,  merely  on  account  of  the 
imperfection.^  "  The  making  a  man  trustee  involves  an 
intention  to  become  a  trustee,  whereas  words  of  gift 
show  an  intention  to  give  over  property  to  another,  and 
not  to  retain  it  in  the  donor's  hands  for  any  purpose,  fidu- 
ciary or  otherwise."  ^ 

411.  Not  to  be  Confounded  with  Conveyances  foe 
A  Valuable  Consideeation. — A  conveyance,  as  a  gift, 
to  a  trustee  for  a  designated  third  person  should  not  be 
confounded  with  a  conveyance  to  a  trustee  for  a  valuable 
consideration ;  nor  with  another  class  of  cases  in  which 
words  of  transfer  for  a  valuable  consideration  are  held  to 
be  evidence  of  a  contract  which  the  courts  will  enforce.^ 

412.  Teust  Must  be  Completed  by  Donoe. — If  A 
transfers  proj)erty  to  B  in  trust  for  C,  the  latter  may  en- 
force the  trust  against  both  of  them.  No  consideration 
is  necessary.  But  in  order  to  enable  the  beneficiary  to 
enforce  the  trust,  it  must  be  completely  executed.  A 
conveyance  by  written  instrument,  however,  is  not  neces- 
sary, for  the  trust  may  be  j^roved  by  parol  or  even  by 
acts  of  the  donor.     "  The  one  thing  necessary,"  said  Vice- 

Delbridge,  18  L.  E.  Eq.  11  ;  S.  C.  43  L.  J.  Ch.  459;  22  W.  E.  584;  Marcy  v. 
Amazeen,  61  N.  H.  131,  134. 

^  Heartley  v.  Nicholson,  44  L.  J.  Ch.  App.  277. 

"^  Eichards  v.  Delbridge,  18  L.  E.  Eq.  11  ;  S.  C.  43  L.  J.  Ch.  459  ;  22  W.  E.  584  ; 
Young  V.  Yonng,  80  N.  Y.  422.  If  the  trust  is  created  by  a  writing,  parol  evidence 
of  the  donor's  declarations  is  not  admissible  to  contradict  it:  Lee  v.  Luther,  3 
Wood  &  M.  519  ;  Barnura  v.  Eeed,  136  111.  388. 

3  Eichards  v.  Delbridge,  18  L.  E.  Eq.  11  ;  S.  C.  43  L.  J.  Ch.  459;  22  W.  E. 
584. 


414  Gifts. 

Chancellor  Bacon,  "  to  give  validity  to  a  declaration  of 
trust — the  indis^^ensable  thing — I  take  to  be,  that  the 
donor,  or  grantor,  or  whatever  he  may  be  called,  should 
have  absolutely  j^arted  with  that  interest  which  had  been 
his  up  to  the  time  of  the  declaration,  should  have  effect- 
ually changed  his  right  in  that  respect,  and  put  the  prop- 
erty out  of  his  power  in  the  way  of  interest."  ^  Lord 
Eldon  at  an  early  day  laid  down  one  of  the  cardinal  rules 
of  voluntary  trusts  touching  their  validity  and  enforce- 
ments in  courts  of  equity.  "  I  take  the  distinction  to  be," 
said  he,  "  that  if  you  want  the  assistance  of  the  court  to 
constitute  you  cestui  que  trust,  and  the  instrument  is  volun- 
tary, you  shall  not  have  that  assistance,  for  the  purpose  of 
constituting  you  cestui  que  trust.  As  upon  a  covenant  to 
transfer  stock,  if  it  rest  in  covenant  and  is  purely  volun- 
tary, this  court  will  not  execute  that  voluntary  covenant ; 
but  if  the  i^arty  has  completely  transferred  stock,  though 
it  is  voluntary,  yet  the  legal  conveyance  being  effectually 
made,  the  equitable  interest  will  be  enforced  by  this  court.  "^ 
Many  cases  contain  statements  in  which  language  similar 
to  this  is  used.  Thus  Chief  Justice  Bigelow  has  well  said  : 
"  The  key  to  the  solution  of  the  question  raised  in  this  case 
is  to  be  found  in  the  equitable  principle  now  w^ell  estab- 
lished and  uniformly  acted  on  by  courts  of  chancery,  that 
a  voluntary  gift  or  conveyance  of  property  in  trust,  when 
fully  completed  and  executed,  will  be  regarded  as  valid, 
and  its  provisions  enforced  against  all  persons  except  cred- 
itors and  bona  fide  purchasers  without  notice.  It  is  cer- 
tainly true  that  a  court  of  equity  will  lend  no  assistance 
toward  perfecting  a  voluntary  contract  or  agreement  for 
the  creation  of  a  trust,  nor  regard  it  as  binding  so  long  as 

1  Warriner  v.  Kogers,  L.  R.  IG  Eq.  340  ;  S.  C.  42  L.  J.  Ch.  581  ;  21  W.  R.  76G ; 
28  L.  T.  N.  S.  863. 

-  Ellison  V.  Ellison,  6  Ves.  Jr.  656;  Bridge  v.  Bridge,  16  Beav.  315;  S.  C.  16 
Jur.  1031. 


Voluntary  Trusts.  415 

it  remains  executory.  But  it  is  equally  true  tliat  if  such 
agreement  or  contract  be  executed  by  a  conveyance  in 
trust,  so  that  nothing  remains  to  be  done  by  the  grantor 
or  donor  to  complete  the  transfer  of  the  title,  the  relation 
of  trustee  and  cestui  que  trust  is  deemed  to  be  established, 
and  the  equitable  rights  and  interests  arising  out  of  the 
conveyance,  though  made  without  consideration,  will  be 
enforced  in  chancery."  ^ 

413.  DoxoE,  Constituting  Himself  a  Trustee  for 
THE  Donee. — The  owner  of  property  may  by  a  deed  or 
other  instrument  in  writing,  or  even  by  a  parol  declara- 
tion or  by  acts  and  conduct,  raise  a  trust  in  favor  of  a 
donee,  and  constitute  himself  a  trustee  for  him,  without 
any  actual  delivery  to  the  donee  of  the  thing  given.  In 
all  such  instances  the  declaration  of  trust  must  be  clear 
and  explicit,  and  must  be  fully  executed,  not  merely  rest- 
ing in  promise,  but  completed.  Usually  questions  con- 
cerning such  trusts  have  arisen  where  the  donor  has  con- 
stituted or  attempted  to  constitute  himself  a  trustee  by  a 
deed  or  other  written  instrument ;  but  the  same  rule  is 
applicable  where  the  declaration  of  trust  has  been  by 
parol,  or  by  acts  of  the  donor,  or  by  both  combined. 
Whenever  such  a  trust  has  been  raised,  Avhether  the  prop- 
erty is  capable  or  incapable  of  delivery  or  transfer,  tlie 
donee  may  enforce  the  trust  against  the  donor,  who  from 
thenceforward  is  a  mere  trustee.  "  The  legal  owner  of 
the  property  may,"  said  Jessel,  Master  of  the  Rolls,  ''by 
one  or  other  of  the   modes  recognized  as  amounting  to  a 

^  Stone  V.  Hackett,  12  Gray,  227  ;  Ex  parte  Pye,  18  Yes.  140  ;  Pulrertoft  v.  Tiil- 
vertoft,  18  Ves.  84;  Colman  v.  Sarrel,  1  Ves.  50;  S.  C.  3  Bro.  C,  C.  12;  Graliam 
V.  Graham,  1  Yes.  272 ;  Knye  v.  Moore,  1  Sim.  &  Stu.  61 ;  Cotteen  r.  Missing,  1 
Madd.  176  ;  Thorpe  v.  O'sven,  5  Reav.  224  ;  Wilcocks  v.  IIannyn,£rton,  o  Jr.  Ch.  38  ; 
Martin  v.  Funk,  75  N.  Y.  134;  Robsm  r.  Robson,  3  Del.  Ch.  51,  a  very  e.Tcellent 
discussion  of  many  points  ;  Fhmders  v.  Blandy,  45  Ohio  St.  108  ;  Minor  v.  Rogers, 
40  Conn. 512. 


416  Gifts. 

valid  declaration  of  trust,  constitute  himself  a  trustee, 
and,  without  an  actual  transfer  of  the  legal  title,  may  so 
deal  with  the  property  as  to  dejDrive  himself  of  its  bene- 
ficial ownership,  and  declare  that  he  will  hold  it  from 
that  time  forward  on  trust  for  the  other  person.  It  is  true 
he  need  not  use  the  words,  '  I  declare  myself  a  trustee,' 
but  he  must  do  something  which  is  equivalent  to  it,  and 
use  exi^ressions  which  have  that  meaning ;  for,  however 
anxious  the  court  may  be  to  carry  out  a  man's  intention, 
it  is  not  at  liberty  to  construe  words  otherwise  than  ac- 
cording to  their  proper  meaning."  ^  Lord  Justice  Turner, 
speaking  in  another  case  on  the  same  subject,  said :  "I 
take  the  law  of  this  court  to  be  well  settled,  that,  in  order 
to  render  a  voluntary  settlement  valid  and  effectual  the 
settler  must  have  done  everything  which,  according  to 
the  nature  of  the  property  comprised  in  the  settlement, 
was  necessary  to  be  done  in  order  to  transfer  the  proj)erty 
and  render  the  settlement  binding  upon  him.  He  may, 
of  course,  do  this  by  actually  transferring  the  property  to 
the  j)ersons  for  whom  he  intends  to  provide,  and  the  pro- 
vision will  be  effectual ;  and  it  will  be  equally  effectual  if 
he  transfers  the  property  to  a  trustee  for  the  purposes  of  a 
settlement,  or  declares  that  he  himself  holds  it  in  trust 
for  those  purposes ;  and  if  the  property  be  personal  the 
trust  may,  I  apprehend,  be  declared  either  in  writing 
or  by  parol ;  but  in  order  to  render  the  settlement  bind- 
ing one  or  other  of  these  modes  must,  as  I  understand 
the  law  of  this  court,  be  resorted  to,  for  there  is  no 
equity   in   tliis   court    to    perfect    an    imperfect    gift."  ^ 

1  Richards  v.  Delbridge,  18  L.  R.  Eq.  11 ;  S.  C.  43  L.  J.  Ch.  459  ;  22  W.  R.  584. 

2  Milroy  v.  Lord,  4  D.,  F.  &  J.  264,  274 ;  S.  C.  7  L.  T.  N.  S.  178 ;  8  Jur.  N.  S. 
806 ;  31  L.  J.  Ch.  798.  "  Nothing  can  be  more  clear  and  distinct,"  said  V.  C. 
Bacon,  referring  to  the  quotation  just  made  above,  ''than  the  exposition  of  the 
law  contained  in  the  sentences  I  have  read,  and  to  my  judgment  nothing  more 
satisfactory,  if  I  were  at  liberty  (which  I  am  not)  to  pronounce  a  critical  opinion 


J 


Voluntary  Trusts.  411 

Thus  a  testatrix  gave  her  personal  estate  to  B  for  the 
benefit  of  B's  daughter.  B  invested  the  proceeds  of  the 
estate,  together  with  £1,000  of  his  own  money,  in  his  own 

of  it:"  Warriner  v.  Rogers,  16  L.  R.  Eq.  340;  S.  C.  42  L.  J.  Ch.  581 ;  28  L.  T. 
863;  21  W.  R.  766.  In  the  case  of  Richards  v.  Delbridge,  18  L.  R.  Eq.  11; 
S.  C.  43  L.  J.  Ch.  459 ;  22  W.  R,  684,  Jessel,  M.  R.,  says  that  the  cases  of  Rich- 
ardson I'.  Richardson,  3  L.  R.  Eq.  686 ;  S.  C.  36  L.  J.  Ch.  653,  and  Morgan  v. 
Malleson,  10  L.  R.  Eq.  475  ;  S.  C.  39  L.  J.  Ch.  680  ;  23  L.  T.  N.  S.  336  ;  18  W.  R. 
1125,  are  overruled  by  ]Milroy  v.  Lord,  supra.  Kekewick  v.  Maiming,  1  De  G.,  M. 
&  G.  176;  S.  C.  21  L.  J.  Ch.  N.  8.  Ch.  577 ;  16  Jur.  625,  is  a  leading  case  on  tliis 
subject.  There  a  person,  beneficially  entitled  to  stock  standing  in  his  name, 
deliberately  and  advisedly  executed  a  deed,  declaring  himself  a  trustee  for  certain 
purposes  to  take  effect  at  once,  and  communicated  and  delivered  the  deed  to  the 
cestui  que  trust.  The  court  enforced  the  trust  against  its  author:  In  re  Bennett, 
17  L.  T.  N.  S.  438.  The  lessee  of  a  large  farm,  who  had  considerably  increased 
its  value  by  the  expenditure  of  money,  failed  and  assigned  the  lease  to  trustees, 
who  in  turn  assigned  it  to  the  landlord.  His  wife's  brother  then  applied  to  the 
landlord  to  become  tenant  of  tiie  remainder  of  the  lea«e  upon  the  same  terms, 
stating  in  his  written  application  tiiat  it  was  "with  the  view  to  benefit  his  sister 
and  her  unfortunnte  family."  With  that  view  the  landlord  granted  the  lease; 
and  the  brother,  contrary  to  the  landlord's  usual  habit,  was  allowed  to  have  a 
co-lessee,  who  was  the  actual  occupier,  and  also  to  sub-let  a  part,  by  whicii  means 
he,  the  brother,  derived  a  clear  £100  a  year  above  the  rent,  which  was  paid  by 
the  co-lessee.  It  was  held  that,  by  means  of  these  letters  and  the  circumstances, 
the  court  would  enforce  a  trust  as  to  the  £100  a  year  for  the  wife  of  the  original 
tenint  and  her  children  as  joint  tenants  :  Morton  v.  Tewart,  2  Y.  &  Coll.  N.  C.  67. 
A  and  B.  partners,  were  indebted  to  C  and  D.  By  letter  A  proposed  to  assign  a 
claim  which  he  and  B  had  upon  the  estate  of  P,  then  tlie  subject  of  a  suit  in 
chancery.  Certain  properties  of  this  estate  were  sold  and  A  purchased  them  for 
C  and  D,  as  he  declared  by  letters.  It  was  held  that  there  was  a  clear  trust  estab- 
lished, even  as  against  .\'s  subsequent  assignee  in  bankruptcy:  Johnson  v.  Perrin, 
Hayes,  322.  A  memorandum  of  a  gift  was  in  this  form  :  "  I  hereby  give  and  make 
over  to  M.  an  Indian  bond,  value  £1,000."  It  was  signed  and  given  by  the  donor 
to  one  M.,  without  handing  over  the  bond.  The  donor  died,  but  as  against  his 
residuary  legatee  the  gift  was  u|iheld  as  a  good  declaration  of  trust  in  favor  of  M. : 
Morgans  Malleson,  10  L.  R.  Eq.  475;  S.  C.  39  L.  J.  Ch.  680;  23  L.  T.  N.  S. 
336 ;  18  W.  R.  1125 ;  Boyd's  Case,  1  De  G.  &  J.  223 ;  3  Jur.  N.  S.  897  ;  26  L.  J. 
Ch.  737.  In  Scales  v.  Maude,  6  De  G.,  M.  Sc  G.  43;  S.  C.  1  Jur.  N.  S.  1147; 
25  L.  J.  Ch.  433;  3  W.  R.  527  ;  1  Jur.  N.  S.  533,  it  was  held  that  a  mere  decla- 
ration of  tru^t  was  not  enforceable  unless  there  had  been  a  cliange  of  legal  owner- 
ship and  so  a  trust  constituted  ;  but  in  Jones  v.  Lock,  1  L.  R.  Ch.  25;  S.  C.  .35 
L.  J.  Ch.  117 ;  13  L.  T.  N.  S  514 ;  11  .lur.  N.  S.  913 ;  14  W.  R.  149,  this  decla- 
ration, a  mere  dictum.  w.as  overruled.  Certain  lands  were  vested  in  trustees  for  B, 
a  married  woman,  during  her  coverture,  with  directions  to  pay  the  rents  as  she 
should  by  writing  direct;  and  after  termination  of  coverture  she  was  to  have  the 
27 


418  Gifts. 

name,  and  afterward  treated  and  admitted  the  aggregate 
fund  as  held  in  trust  for  his  daughter.  On  the  death 
of  B  the  fund  was  found  mixed  with  his  own  funds. 
The  court  decided  that  under  the  circumstances  tliere  was 
a  trust  of  £1,000  in  favor  of  the  daughter.^  A  father 
gave  his  daughter  $400  toward  the  purchase  of  a  tract  of 
land,  made  by  her  husband,  intending  that  the  loan  should 
go  into  the  land  for  her  benefit.  Afterward,  hearing  that 
her  husband  had  taken  the  title  in  his  own  name,  he  took 
from  him  a  note  for  the  amount  given.  By  articles  of 
agreement  the  husband  sold  the  land,  and  the  father,  still 
holding  the  note,  took  judgment  on  it,  and  levied  ujDon 
and  purchased  the  land.  By  ejectment  against  the 
equitable  vendee  he  obtained  possession,  and  collected 
from  him  the  unpaid  purchase-money,  amounting  to, 
less  expenses,  $600.     It  was  held  that  the  father,  when 

legal  estate  in  the  lands.  During  her  coverture  she  wrote  to  C :  "  You  hold  a 
bond  [giving  the  date  and  araonnt],  signed  by  my  husband  and  myself.  I  hold  my- 
self accountable  for  the  payment  of  this  bond,  with  interest  at  six  per  cent.,  again;^t 
the  lands  of  D  [which  were  held  in  trust  for  her]  ;  and  should  he  die,  or  should 
I  die,  my  son  Jolin,  whom  I  have  made  my  heir,  shall  hold  himself  accountable 
for  the  amount  of  this  bond,  and  cause  you  to  be  paid,  retaining  you,  or,  in  the 
event  of  your  death,  your  son  James,  as  agent  for  the  lands  of  D,  until  said  bond 
is  discharged."  This  was  duly  signed.  The  bond  alluded  to  in  the  letter,  though 
signed  by  her,  was  in  the  body  of  it  only  the  bond  of  her  husband.  It  was  held 
that  this  was  binding  on  the  lands  as  a  trust,  though  not  on  her  personally: 
Wilcocks  r.  Harnnyngton,  5  Ir.  Ch.  38.  Generally,  Ownes  v.  Ownes,  23  N.  J.  Eq. 
60;  Crawford's  Appeal,  61  Pa.  St.  52.  "To  constitute  himself  the  trustee  of 
property  remaining  in  his  possession  and  not  transferred  at  law,  it  must  appear 
from  his  acts  or  declarations  that  he  intended  to  part  with  his  former  ownership 
of  the  thing,  and  to  retain  only  the  legal  title  and  control  which  belongs  to  a 
trustee,  precisely  such  as  would  pass  to  a  third  person  taking  as  a  trustee  in  the 
first  instance:"  Robson  v.  Robson,  3  Del.  Ch.  51,  78.  If  property  passes  into  the 
hands  of  a  donee,  charged  with  a  trust,  and  lie  promises  the  beneficiary  to  per- 
form the  trust,  performance  of  ^uch  promise  may  be  compelled  by  an  actii^n  at 
law;  and,  if  no  such  promise  was  made,  by  a  suit  in  equity:  Trorlicht  v.  Weizen- 
ecker,  1  Mo.  App  4S2 ;  Minor  v.  Rogers,  40  Conn.  512  ;  Love  v.  Francis,  63  Mich. 
181 ;  Southerland  v.  Southerland,  5  Busli.  591 ;  Lamprey  v.  Lamprey,  29  Minn. 
151 ;  Gannon  v.  White,  2  Tr.  Eq.  207. 
1  Thorpe  r.  Owen.  5  Beav.  224. 


Voluntary  Trusts.  419 

he  purchased  the  land  at  sheriff's  sale,  became  a  trustee 
for  her.^ 

414.  Sufficiency  of  Language  to  Create  a  Trust. 
— It  is  not  necessary  that  the  donor  should  in  express 
words  declare  that  he  creates  a  trust,  as  "  I  declare  myself 
a  trustee,"  ^  nor  to  use  the  words  "  confidence,"  "  trust,"  or 
"  trustee."  ^  But  language  showing  a  gift  absolute  cannot 
be  turned  into  a  sufficient  declaration  of  trust,*  nor  can 
language  showing  only  a  mere  intention  to  create  a  trust.^ 

415.  Donor  Must  Part  Absolutely  with  His  In- 
terest IN  the  Property. — The  declaration  of  trust  and 
the  acts  of  the  donor  must  be  sufficient  to  absolutely  divest 
him  of  all  title  in  and  to  the  property  given  or  which  is 
the  subject  of  the  trust.  His  acts  and  declarations  must 
effectually  put  all  his  interest  beyond  his  control.*^  If  any 
further  act  remains  to  be  performed  to  render  the  gift  or 

iSourwine  v.  Claypool,  133  Pa.  St.  126. 

2  Richards  i-.  Delbridge,  18  L.  R.  Eq.  11;  S.  C.  43  L.  J.  Ch.  459;  22  W.  R. 
684. 

'Kekewick  v.  Manning,  1  De  G.,  M.  &  J.  176 ;  S.  C.  21  L.  J.  Ch.  N.  S.  577 ;  16 
Jur.  625 ;  Ex  parte  Pye,  18  Yes.  140 ;  Ellis  v.  Secor,  31  Mich.  185. 

*  Young  V.  Young,  80  N.  Y.  422. 

^  In  re  Glover,  2  John.  &  Hem.  186.  The  following  unsigned  entry  in  a  ledger 
was  held  not  to  constitute  a  gift :  "  N.  B.— As  I  gave  R.  J.  Adams  only,  say,  about 
£2,000  when  he  commenced  business  in  partnership  with  E.  J.  Eristowe  (£3,000 
being  his  own  money  as  received  for  sale  of  fa''m,  etc.),  I  am  dne  to  him,  to  make 
him  equal  to  what  I  gave  James  Adams,  the  sum  of  £3,000.  Therefore  I  credit 
R.  J.  Adams'  interest  on  this,  at  five  per  cent,  annually,  £150."  But  see  Smith's 
Estate.  8  Pa.  C.  C.  539;  Adams  v.  Lopdell,  25  L.  R.  Ir.  311.  "To  constitute  a 
trust  there  must  be  either  an  explicit  declaration  of  trust,  or  circumstancfs  which 
show  beyond  reasonable  doubt  that  a  trust  was  intended  to  be  created  :  '  Beaver  ;■. 
Beaver.  117  N.  Y.  421. 

«Collinson  v.  Pattrick,  2  Keen,  123;  S.  C.  7  L.  J.  N.  S.  Ch.  83;  Peckham  r. 
Tavlor  6  L.  T.  N.  S.  487;  Bentlev  v.  Mackay,  15  Beav.  12;  ^Slilroy  ;•.  Lord,  8 
Jur.  N  S.  806  ;  S.  C.  31  L.  J.  Ch.  798  ;  7  L.  T.  N.  S.  178 ;  4  De  G.,  F.  &  J.  264  ; 
"Wilkinson  v.  Wilkinson,  4  Jur.  N.  S.  47  ;  Walrond  ?•.  Walrond,  4  Jur.  N.  S. 
1099  ;  Scales  v.  Maude,  3  W.  R.  527  ;  S.  C.  1  Jur.  N.  S.  533  ;  6  De  G.,  M.  c^;  G.  43 ; 
1  Jur.  N.  S.  1147 ;  25  L.  J.  Ch.  433. 


420  Gifts. 

settlement  complete  tlie  courts  will  not  compel  its  comple- 
tion, however  strong  the  intent,  of  the  donor  to  make  the 
gift  complete  may  have  been  manifested  and  remain  un- 
retracted.^ 

416.  Donor  Must  Paet  with  His  Dominion  Over 
GiFT^ — -Assistance  of  a  Court  of  Equity. — The  donor 
cannot  retain  any  dominion  over  the  gift  as  the  owner  and 
create  a  j)erfect  trust.  In  this  respect  it  is  precisely  as  in 
the  case  of  an  ordinary  gift  exclusive  of  any  question  of 
trust.  No  part  of  the  legal  dominion  can  remain  in  him 
as  an  individual,  though  it  may,  as  we  have  seen,^  as  trus- 
tee.^ A  court  of  equity  will  not  compel  him  to  complete 
the  gift.^'  Thus  where  a  donor  assigned  a  mortgage,  and 
purported  to  convey  copyholds  ;  and  he  also  covenanted 
for  quiet  enjoyment  and  for  further  assurance  ;  but  died 
without  having  surrendered  the  copyholds  ;  the  court  re- 
fused to  render  assistance  to  compel  the  completion  of  the 
voluntary  settlement.^  But  if  the  donor  has  divested  him- 
self of  all  title  to  the  article  given,  and  of  all  control  over 
it,  courts  of  equity  will  enforce  the  trust  thus  voluntarily 
created.*^ 

iDening  v.  Ware,  22  Beav.  184;  Warriner  v.  Rogers,  16  L.  R.  Eq.  340;  S. 
C.  42  L.  J.  Ch.  581 ;  21  W.  E.  766  ;  28  L.  T.  N.  S.  863 ;  Heartley  v.  Nicholson, 
19  L.  R.  Eq.  233 ;  44  L.  J.  Ch.  277 ;  21  L.  T.  N.  S.  822. 

2  See  Section  413. 

3  Hughes  V.  Stubbs,  1  Hare,  476  ;  6  Jur.  831  ;  Ex  parte  Pye,  18  Ves.  140  ;  War- 
riner V.  Rogers,  16  L.  R.  Eq.  340 ;  42  L.  J.  Ch.  681 ;  21  W.  R.  766  ;  28  L.  T.  N. 
S.  863;  AVilkinson  v.  Wilkinson,  4  Jur.  N.  S.  47;  Searle  v.  Law,  15  Sim.  95. 

*  Wittingham  v.  Lighthipe,  46  N.  J.  Eq.  429. 

s  Deuing  v.  Ware,  22  Beav.  184. 

^  Stone  V.  Hackett,  12  Gray,  227;  Andrews  v.  Hobson,  23  Ala.  219;  Bunn  v. 
Winthrop,  1  Johns.  Ch.  329  ;  Tolar  v.  Tolar,  1  Dev.  (N.  C.)  456  ;  Hardin  t;.  Baird, 
6  Litt.  340;  Fogg  v.  Middleton,  Riley  Ch.  193;  Greenfield's  Est.,  2  llarr.  (Pa.) 
489;  Kirkpatrick  v.  McDonald,  1  .Jour.  387;  Graham  v.  Lambert,  5  Humph. 
695;  Henson  v.  Kinard,  3  Strobh.  fS.  C.)  Eq.  371  ;  Dupre  v.  Thompson,  4  B;irb. 
279;  Cox  v.  Sprigg,  G  Md.  274  ;  Lane  v.  Ewing,  31  Mo.  75  ;  Massey  v.  Hunting- 
ton, 118  111.  80;  Howard  v.  Savings  Bank,  40  Vt.  597  ;    Tanner  v.  Skinner,  11 


Voluntary  Trusts.  421 

417.  Mere  Intent  to  Create  a  Trust  is  Not  Suffi- 
cient.— A  mere  intention  on  the  part  of  the  donor  to 
create  a  trust  in  favor  of  the  donee  is  not  siifBcient ;  so  if 
liis  declarations  and  acts  show  that  he  intended  to  do 
something  farther  to  comjDlete  the  gift,  there  is  no  trust 
created.  An  ilkistration  of  this  is  where  a  mother  ex- 
pressed her  intention  to  make  a  settlement  of  a  part  of 
property  she  held  under  a  will  upon  her  daughter,  re- 
questing her  solicitor  to  prepare  such  a  settlement ;  and 
when  he  prepared  and  brought  it  to  her  she  refused  to 
sign  it,  saying  she  had  changed  her  mind,  the  court  re- 
fused to  enforce  the  trust  against  her,  for  the  reason  that 
her  declaration  amounted  only  to  the  expression  of  an 
intent  and  was  not  considered  by  her  as  a  finality  in  the 
transaction.^ 

418.  Trust  Must  be  Certain  and  not  Eest  in  In- 
tention OR  Promise — Mere  Intent. — In  order  to  raise 
a  trust  the  intention  of  the  donor  must  be  clearly  ex- 
pressed in  whatever  manner  he  undertakes  to  create  it.  It 
must  not  rest  in  conjecture  either  as  to  the  thing  or 
amount  given  or  the  object  of  the  gift  or  the  time  when 
it  is  tor  be  created.  Thus  a  donor  wrote  to  her  executor  : 
"  As  to  the  money  to  be  allowed  C.  M.,  when  you  ascer- 
tain what  the  property  is,  whatever  you  and  Mr.  M.  think 
right  that  I  should  give  her,  I  shall  abide  by."  It  was 
considered  that  the  gift  was  inchoate,  "  the  quantum  of 
property  not  having  been  ascertained."  Later  the  same 
donor  wrote :  "  With  respect  to  C.  M.,  as  you  and  Mr.  M. 

Bush,  120;  Padfield  v.  Padfield,  68  111.  210;  Lee  r.  Luther,  3  Wood.  &  M.olO; 
Robson  V.  Robson,  3  Del.  Ch.  51. 

1  Ravley  v.  Boulcott,  4  Russ.  345.  Where  the  character  of  flic  instrument  of 
gift,  upon  inspection,  is  left  doubtful,  parol  evidence  is  admissible  to  show  tiie  in- 
tention of  the  maker :  Egertonr.  Carr,  94  N.  C.  048  ;  Martin  r.  Funk,  75  N.  Y, 
134;  .lackson  v.  Twenty-third  St,  Ry.  Co.,  88  N.  Y.  520;  Chappell  v.  Griffith, 
53  L.  T.  459 ;  S.  C.  50  J.  P.  86  ;  McMahon  v  McMahon,  55  L.  T.  763. 


422  Gifts. 

says  she  ought  to  be  allowed  £500,  I  will  readily  consent 
to  it.  I  am  willing  to  do  anything  that  is  right."  "  This 
letter,"  said  the  court,  "  amounted  to  a  declaration  of  the 
propriety  of  giving  her  £500,  and  shows  her  apjDroval  of 
a  gift  to  that  amount ;  but  does  not  give  effect  to  the  gift, 
and  carry  it  into  execution.  Nothing  is  said  as  to  who  is  to 
pay  the  money,  or  when  it  is  to  be  paid.  .  .  .  Nothing  is 
said  as  to  what  part  of  her  property  this  money  was  to  be 
raised  out  of;  whether  out  of  money  in  the  funds,  or  out 
of  the  estate.  Nothing  is  to  be  found  in  the  letters  but 
an  intention  to  give  ;  and  therefore  this  case  widely  differs 
from  the  cases  alluded  to,  where  acts  were  done,  carrying 
the  gift  into  execution.  Here  the  gift  was  not  ex- 
ecuted." ^  So  wdiere  a  father  took  his  own  check  for  £900 
and  placed  it  in  his  baby-boy's  hands,  saying  in  the 
presence  of  his  wife  and  the  nurse,  "  I  give  this  to  baby  ; 
it  is  for  himself,  and  I  am  going  to  j^ut  it  away  for  him," 
and  then  took  the  check,  saying  again  he  was  going  to  put  it 
away  for  him  ;  and  about  the  same  time  told  his  solicitor 
that  he  intended  to  add  £100  to  the  £900,  and  invest  it 
for  the  benefit  of  his  son  ;  but  died  before  doing  so,  it  was 
held  that  there  was  no  gift,  the  check  not  ojDcrating  as  a 
transfer  of  the  funds  it  represented,  and  the  declarations, 
in  view  of  this  fact,  operating  only  as  evidence  of  an  in- 
tent to  make  the  gift.^ 

^  Cotteen  v.  Missing,  1  Madd.  176 ;  King's  Estate,  21  L.  R.  Ir.  273. 

-  Jones  V.  Lock,  1  L.  R.  Ch.  25 ;  S.  C.  35  L.  J.  Ch.  117  ;  13  L.  T.  N.  S.  514 ;  11 
Jur.  N.  S.  913  ;  14  W.  R.  149  ;  Scales  v.  Maude,  6  De  G.  &  M.  43  ;  S.  C.  1  Jur. 
533,  1147  ;  25  L.  J.  Ch.  433  ;  3  W.  R.  527  ;  Wilkinson  v.  Wilkinson,  4  Jur.  N.  S. 
47  ;  Pownall  v.  Anderson,  4  W.  R.  407.  Tliat  courts  will  not  establish  a  trust  on 
the  voluntary  agreement  of  the  settler,  made  without  consideration,  when  at  the 
time  the  settler  contemplated  some  further  act  for  the  purpose  of  making  it  com- 
plete, see  Swan  V.  Frick,  34  Md.  139;  Lloyd  v.  Brooks,  34  Md.  27;  Bayley  v. 
Boulcott,  4  Russ.  345;  Dipple  ?'.  Codes,  11  Hare,  183;  Caldwell  r.  Williams,  1 
Bail.  Eq.  175  ;  Crompton  v.  Vasser,  19  Ala.  259  ;  Reed  v.  Vannorsdale,  2  Leigh. 
569 ;  Hayes  v.  Kershow.  1  Sandf.  Ch.  258 ;  Evans  v.  Battle,  19  Ala.  398  ;  Minturn 
V.  Seymour,  4  Johns.  Ch.  497  ;  Acker  v.  Phcenix,  4  Paige,  305  ;  Dawson  v.  Daw- 


Voluntary  Trusts.  423 

419.  DoxoR  Must  Have  Intended  to  Create  a 
Trust. — The  donor  must  have  intended  to  create  the 
trust  and  place  it  beyond  his  control  as  owner.  If  from 
the  whole  transaction  it  appears  that  he  had  no  such  in- 
tention, then  his  declarations  of  a  gift  in  trust,  however 
formal,  will  be  unavailing  to  create  a  trust.^ 

420.  Difference  Between  an  Assignment  and  a 
Declaration  of  Trltst. — The  distinction  between  an 
assignment  for  a  volunteer  and  a  declaration  of  trust  in 
his  favor  is  very  thin.  Thus  if  the  owner  of  a  fund  says 
"  I  hold  this  fund  for  A,"  the  trust  is  complete ;  but  if  he 
only  assigns  it,  a  different  relation  exists  between  the 
parties ;  and  it  would  be  a  destruction  of  the  distinction 
to  say  that  an  assignment,  because  it  may  create  a  trust, 
is  to  be  considered  the  same  as  a  declaration  of  trust. 
Therefore,  in  England,  where  stock  could  only  be  trans- 
ferred by  an  entry  on  the  books  of  the  corporation,  a 
mere  assignment  of  it  without  an  actual  transfer  was  held 
not  to  create  a  trust  in  favor  of  the  assignee.^ 

son,  1  Dev.  (N.  C.)  Eq.  93;  Yarborough  v.  West,  10  Geo.  471  ;  Read  v.  Robinson, 
6  W.  &  S.  329  ;  Clarke  v.  Lott,  11  111.  105  ;  Shaw  v.  Burney,  1  Ired.  (N.  C.)  Eq. 
148;  Lanterman  v.  Abernathv,  47  111.  437;  Gardner  v.  Merritt,  32  Md.  78; 
Lowry  v.  McGee,  3  Head.  269;  P^orward  v.  Armstead,  12  Ala.  124;  Ticrnan  r. 
Poor,  1  Gill.  &  J.  216;  Darlington  v.  McCoole,  1  Leigh,  36;  Bibb  v.  Smith,  1 
Dana,  580  ;  Banks  v.  May,  3  A.  K.  Marsh,  435  ;  Penfold  v.  Monld,  4  L.  R.  Eq. 
562  ;  Antrobus  v.  Smith,  12  Ves.  39  ;  Colman  v.  Sarel,  3  Bro.  Ch.  12.  When  the 
character  of  the  instrument  of  gift,  upon  inspection,  is  left  doubtful,  parol  evi- 
dence is  admissible  to  sliow  the  intention  of  the  maker :  Egerton  v.  Carr,  94  N.  C. 
648 ;  Martin  v.  Funk,  75  N.  Y.  134 ;  Robson  v.  Robson  3  Del.  Ch.  50 ;  Flanders  v. 
Blandy,  45  Ohio  St.  108.  a  gift  of  bonds. 

1  Robson  V.  Robson,  3  Del.  Ch.  51,  78  ;  Hughes  r.  Stubbs,  11  Jur.  N.  S.  902;  Ileart- 
ley  i^  Nicholson,  19  L.  R.  Eq.  233  ;  44  L.  J.  Cii.  277 ;  22  L.  T.  N.  S.  822 ;  Chap- 
pell  V.  Griffith,  53  L.  T.  459  ;  S.  C.  50  J.  R  86. 

=  Beech  V.  Keep,  18  Beav.  285 ;  S.  C.  18  Jur.  971  ;  23  L.  J.  Ch.  539 ;  2  W.  R. 
316;  Bridge  v.  Bridge,  16  Beav.  315;  Robson  r.  Robson,  3  Del.  Ch.  51  ;  Trough's 
Estate,  75  Pa.  St.  115 ;  Pethybridge  v.  Burrow,  53  L.  T.  5  ;  West  v.  West,  9  L.  R. 
Irish,  121  ;  Moore  v.  Moore,  18  L.  R.  Eq.  474 ;  S.  C.  43  L.  J.  Ch.  617  ;  22  W.  R. 
729 ;  30  L.  T.  752 ;  Ellis  v.  Secor,  31  Mich.  185. 


424  Gifts. 

421.  When  Trust  is  Completed. — A  trust  may  be 
said  to  be  completed  when  the  donor  has  no  farther  act 
to  perform  to  render  it  effectuah  In  the  case  of  a  deed 
creating  a  trust,  the  execution  of  the  deed — or  the  sign- 
ing and  delivery  of  the  deed — is  a  comjDletion  of  the 
trust.^  It  is  a  question  of  fact  whether  the  trust  has  been 
perfected  ;  and  in  determining  that  question,  the  situation 
and  relation  of  the  parties,  the  kind  of  property,  and  the 
object  the  donor  had  in  view  in  creating  the  trust  must 
all  be  considered.^ 

422.  Parol  Declaration  Accompanied  by  Acts. — 
Nearly  all  the  cases  concede  that  the  donor  may  consti- 
tute himself  a  trustee  by  a  parol  declaration  to  that  effect. 
In  such  instances,  however,  the  declaration  must  be  very 
clear  and  explicit ;  but  if  the  declarations  are  accompanied 
or  followed  (and  perhaps  preceded)  by  acts  in  harmony 
with  them,  the  courts  will  much  more  readily  uphold  the 
trust  and  decree  its  execution.  Thus  where  "a  testator 
bequeathed  £2,000  on  a  certain  trust,  empowering  his 
executor,  who  was  also  his  residuary  legatee,  to  retain 
the  amount  in  his  hands  uninvested,  he  paying  interest 
thereon ;  and  the  executor  being  satisfied  that  the  testator 
intended  to  bequeath  £3,000  instead  of  £2,000,  promised 
to  make  it  £3,000  but  made  no  investment,  continuing, 
however,  to  pay  interest  on  the  £3,000 ;  the  court  consid- 
ered that  there  was  a  completed  gift,  and  enforced  it.^ 

1  Massey  v.  Huntington,  118  111.  80 ;  Evans  v.  Grey,  9  L.  R.  Ir.  539. 

2  Jones  V.  Lock,  1  L.  R.  Ch.  25;  35  L.  J.  Ch.  117  ;  13  L.  T.  N.  S.  514 ;  11  Jur. 
N.  S.  913 ;  14  W.  R.  149 ;  Brabook  v.  Boston  Five  Cents  Savings  Bank,  104  Mass. 
228  ;  Hackney  v.  Vrooraan,  62  Barb.  650  ;  Martin  v.  Funk,  75  N,  Y.  134  ;  Taylor 
V.  Henry,  48  Md.  550;  S.  C.  30  Am.  Rep.  486 ;  Blaisdell  v.  Lock,  52  N.  H.  238  ; 
In  re  O'Brien,  11  R.  I,  419;  Stone  v.  Bishop,  4  Cliff.  593;  Egerton  v.  Carr,  94 
N.  C.  648 ;  Lee  v.  Luther,  3  Wood  &  M.  519 ;  Walker  v.  Crews,  73  Ala.  412 ; 
Petliyhridge  v.  Burrow,  53  L.  T.  5. 

3  Gee  V.  Liddell,  35  Beav.  621  ;  Morton  v.  Tewart,  2  Y.  &  Coll.  N.  C.  67  (a 
letter.)     See  Pethybridge  v.  Burrow,  53  L.  T.  5. 


Voluntary  Trusts.  425 

423.  Donor  Retaining  Deed  and  Failing  to  De- 
liver It — Failure  to  Communicate  with  Trustee  and 
Donee. — When  the  instrument  of  gift  is  in  writing  and 
under  seal,  as  a  deed,  its  delivery  is  not  essential  to  the 
creation  of  a  trust,^  nor  is  it  necessary  that  the  donor  com- 
municate his  intent  to  the  trustee  or  donee.  In  all  such 
instances  the  trust  will  be  upheld  unless  it  is  impeached 
on  the  ground  of  fraud,  mistake,  or  surprise.^  The  court 
considers  his  declaration  in  the  deed  sufficient  evidence  of 
his  intent ;  and  although,  in  such  an  instance  of  non-de- 
livery, if  there  was  a  valuable  consideration  for  the  deed 
it  would  not  be  enforced,  yet  in  the  case  of  a  purely  volun- 
tary transaction  the  court  will  carry  into  effect  the  intent 
set  forth  in  the  deed  ;  but  if  there  are  circumstances  which 
show  that  the  donor  never  intended  the  deed  to  oj^erate, 
these  will  be  considered ;  and  the  non-delivery  is  quite 
a  circumstance — may  be  quite  a  potent  one — to  show 
that  no  trust  was  perfectly  created,  or  that  it  was 
revocable.^  A  donor  signed  a  memorandum  contain- 
ing the  words  "  I  authorize  my  brother  to  claim  as  his 
own,  after  my  death,  £150  out  of  the  money  lying  in  the 
bank  of  Carlisle,  for  the  service  rendered  me  during  my 
lifetime."  He  retained  the  possession  of  the  document  dur- 
ing his  lifetime ;  but  the  court  held  that  there  was  a  valid 

'  Ellis  V.  Secor,  31  Mich.  185  ;  S.  C.  18  Amer.  Rep.  178. 

-  Way's  Trust,  2  De  G.,  J.  &  S.  365  ;  Martin  i'.  Funk,  75  N.  Y.  134  ;  Donaldson 
V.  Donaldson,  Kay,  711;  Meek  v.  Kettlewell,  1  Hare,  4G4 ;  Souverbye  ?'.  Arden.  1 
Johns.  Ch.  240;  Jones  i).  Obenchain,  10  Gratt.  259;  Hope  v.  Harman,  11  Jiir. 
1097;  Urann  v.  Coates,  109  Mass.  681;  Sear  v.  Ashwell,  3  Swanst.  411;  Bunn 
t'.  Winthrop,  1  Johns.  Ch.  329  ;  Fletcher  v.  Fletcher,  4  Hare,  67  ;  Garuons  ;■. 
Knight,  5  B.&C.  671. 

^Uniacke  v.  Giles,  2  Moll.  257;  Naldred  v.  Gilham,  1  P.  Wins.  577;  Ward  r. 
Lant,  Prec.  Ch.  182;  Birch  v.  Blagrave,  Arab.  264  ;  Cecil  v.  Butcher,  2  J.  &  W. 
565;  AntrobuR  v.  Smith,  12  Ves.  39;  Dillon  v.  Coppin,  4  M.  &  Cr.  647;  Cotton 
t'.  King.  2  P.  Wms.  358;  Alexander  v.  Brame,  7  De  G.,  M.  &  G.  525;  Otis  r. 
Beckwith,  49  111.  121 ;  Platamone  v.  Staple,  Coop.  250 ;  Evans  v.  Grey,  9  L.  E.  Jr. 
539. 


426  Gifts. 

declaration  of  trust,  notwithstanding  the  fact  of  its  remain- 
ing in  his  possession  u^  to  the  time  of  his  death.^ 

424.  DoiS^OE,  Unlawfully  Obtaining  Possession  of 
Deed  of  Trust. — If  a  donor  execute  a  deed  of  trust  and 
deliver  it,  he  cannot  thereafter  revoke  the  trust  by  repos- 
sessing himself  of  the  deed  ;  and  if  he  do,  the  beneficiary 
may  maintain  a  bill  to  compel  him  to  redeliver  the  deed, 
without  making  the  depositary  a  party,  when  no  breach 
of  trust  is  charged  against  him.^ 

425.  Delivery  of  Subject-Matter  of  Gift. — If  all 
other  acts  essential  to  the  validity  of  a  trust  are  performed 
a  delivery  to  the  cestui  qui  trust,  or  even  notice  to  him,  is 
not  essential  to  the  validity  of  the  gift.^  So  if  the  donor 
execute  his  note  and  deliver  it  to  a  trustee  to  hold  until 
the  donor's  death  and  to  deliver  it  to  the  beneficiary,  that 
is  a  sufficient  delivery  to  enable  the  donee  to  enforce  it, 
especially  if  it  w^as  a  conditional  gift,  on  the  donee  per- 
forming some  act.'* 

426.  Notice  to  Donee  or  Trustee  of  Trust. — It 
is  not  necessary  to  the  validity  of  a  trust  that  either  the 
donee  or  trustee  shall  have  notice  of  the  creation  of  the 
trust ;  but  the  lack  of  notice  is  always  a  circumstance  to  be 
considered  when  the  question  arises  whether  the  trust  has 
been  completely  created. °     The  transfer  of  property  to  a 

1  Armstrong  v.  Timperon,  19  W.  R.  558  ;  24  L.  T.  N.  S.  275  ;  Martin  v.  Funk, 
75  N.  Y.  134. 

"Knye  v.  Moore,  1  Sm.  &  Stu.  61 ;  Paterson  v.  Murphy,  11  Hare,  88;  S.  C.  17 
Jur.  298;  22  L.J.  Cli.  882. 

2  Martin  v.  Funk,  75  N.  Y.  134. 

*Slienstoner.  Brock,  36  Ch.  Div.  541;  S.  C  56  L.  J.  Ch.  923;  57  L.  T.  249; 
36  W.  R.  118. 

*Tate  V.  Leithhead,  Kay,  658;  Wadd  v.  Hazleton,  G2  Hun,  602;  Beatson  i'. 
Beatson,  12  Sim.  281 ;  Meek  v.  Kettlewell,  1  Hare,  464;  Donaldson  v.  Donaldson, 
Kay,  711 ;  Bridge  v.  Bridge,  16  Beav.  315  ;  Roberts  v.  Lloyd,  2  Beav.  376  ;  Sloper  v. 
Cottrell,  6  El.  &  Bl.  497  ;  Burn  v.  Carvalho,  4  M.  &  Cr.  690;  Martin  v.  Funk,  75 
N.  Y.  134.     A  testator  cannot  by  imposing  a  trust  upon  his  devisee,  the  object  of 


Voluntary   Trusts.  427 

person  without  his  knowledge  vests  the  property  in  him 
at  once,  subject  to  his  right  to  repudiate  it  when  informed 
of  the  transfer ;  and  the  donor  cannot  reclaim  the  property 
on  the  ground  that  the  donee  has  no  knowledge  of  the 
gift.^  In  an  old  case  ^  it  was  said  :  "  The  same  law  of  a 
gift  of  goods  and  chattels,  if  the  deed  be  delivered  to  the 
use  of  the  donee,  the  goods  and  chattels  are  in  the  donee 
presently,  before  notice  or  agreement ;  but  the  donee  may 
make  refusal  in  pais,  and  by  that  the  proj^erty  and  interest 
will  be  divested."  ^ 

427.  DoxoR  DivESTixG  Himself  of  the  Legal 
Title. — If  the  donor  proposes  to  make  a  stranger  the 
trustee  of  the  property  for  the  benefit  of  the  donee,  and 
the  property  is  a  legal  estate  capable  of  a  legal  transfer 
and  delivery,  the  legal  interest  must  be  actually  trans- 
ferred before  the  trust  is  complete.*  Thus  where  an 
owner  of  turnpike  bonds  and  shares  made  a  voluntary 
assignment  to  a  trustee,  in  trust  for  himself,  and  after  his 
death,  for  his  nephew,  and  delivered  the  bonds  and  shares 
to  the  trustee,  but  did  not  observe  the  formalities  required 
by  the  turnpike-road  act  and  the  deeds  by  which  the 
company  was  formed,  to  make  the  assignmejit  effectual ; 
it  was  held  that  no  interest,  in  either  the  bonds  or  the  shares, 
passed   by  the  assignment,  and  that  the  trust  was  void.'' 

which  he  does  not  communicate  to  liim,  enable  liimself  to  escape  tlie  English 
statute  of  wills  bv  declaring  those  objects  in  an  unattested  paper,  found  after  his 
death.  During  his  life  he  should  tell  the  devisee,  and  the  latter  should  accept  in 
order  to  evade  the  statute  :  Boyes  v.  Carritt,  26  L.  R.  Ch.  Div.  531 ;  S.  C.  53  L.  J. 
Ch.  654 ;  50  L.  T.  581 ;  32  "VV.R.  630. 

1  Standing  v.  B  .wring,  31  Ch.  Div.  2S2;  S.  C.  55  L.  J.  Ch.  218;  51  L.  T.  191 ; 
34  AV.  R.  204  ;  affirming  27  Ch.  Div.  341 ;  ^Martin  v.  Funk,  75  N.  Y.  134. 

==  F^mtler  and  Baker's  Case,  3  Rep.  26  b.  (1590). 

3  To  same  effect,  Thompson  v.  Leach,  2  Vent.  208;  reversing  same  case,  2  Vent. 
198  (1690) ;  Siggers  v.  Evans,  5  El.  &  B.  3G7  (1854).  See.  also,  Neikoa  v.  Bliglit, 
1  Johns.  Cas.  205  ;  Moses  v.  Murgatroyd,  1  Johns.  Ch.  119. 

*  Meek  v.  Kettlewell,  1  Hare,  464  ;  Coningham  v.  Plunkett.  2  Y.  &  Coll.  N.  C.  245. 

^Searle  v.  Law,  15  Sim.  95  ;  Price  v.  Price,  14  Beav.  593;  Bridge  v.  Bridge,  16 


428  Gifts. 

Suppose,  however,  the  subject  of  the  trust  is  a  legal  interest 
which  cannot  be  assigned  nor  transferred  at  law,  what  is 
the  rule  ?  By  the  later  authorities  there  is  little  doubt 
that  a  trust  can  be  created  in  such  an  instance.  "  It  is 
upon  legal  and  equitable  principles,"  said  Justice  Bruce, 
"  we  apprehend  clear  that  a  person  sui  juris,  acting  freely 
and  fairly,  and  with  sufficient  knowledge,  ought  to  have, 
and  has  it  in  his  j^ower  to  make  in  a  binding  and  effectual 
manner  a  voluntary  gift  of  any  part  of  his  property, 
whether  capable  or  incapable  of  manual  delivery,  whether 
in  possession  or  reversionary,  or  howsoever  circum- 
stanced." ^  This  rule  has  been  adopted  in  a  number  of 
cases.^  But  where  a  part  of  the  property  was  capable  of 
delivery  and  transfer,  and  a  part  not,  and  the  part  that 
might  have  been  assigned  was  neither  delivered  nor  as- 
signed, it  was  held  that  no  trust  was  created,^ 

Beav.  315;  Beech  v.  Keep,  18  Beav.  285;  Tatliam  r.  Vernon,  29  Bear.  604  ; 
Dilron  v.  Bone,  3  Giff.  538;  Ellison  v.  Ellison,  G  Ves.  656  ;  Duffell  v.  Noble,  14 
Tex.  640;  Lonsdale's  Estate,  29  Pa.  St.  407  ;  Trimmer  v.  Danby,  4  W.  E.  399; 
S.  C.  25  L.  J.  Ch.  424 ;  Milroy  v.  Lord,  4  De  G.,  F.  &  J.  264  ;  S.  C.  8  Jur.  N.  S. 
806 ;  31  L.  J.  Ch.  798;  7  L.  T.  N.  S.  178  ;  Parnell  v.  Kingston,  3  Sm.  &  G.337 ; 
Kiddill  V.  Farnell,  3  Sm.  &  G.  428  ;  Doty  v.  Wilson,  5  Lans.  7 ;  Cressman's 
Appeal,  42  Pa.  St.  147  ;  Gilchrist  v.  Stevenson,  9  Barb.  9 ;  Lane  i'.  Ewing,  31  Mo. 
75;  Henderson  v.  Henderson,  21  Mo.  379;  Jones  v.  Obenchain,  10  Gratt.  259. 

1  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176 ;  S.  C.  21  L.  J.  Ch.  577  ;  16  Jur. 
625. 

nVilcocksr.  Hannyngton,  5  Ir.  Ch.  38;  Gilbert  v.  Overton,  4  N.  R.  420;  2 
Hem.  &  M.  110 ;  10  Jur.  N.  S.  721 ;  33  L.  J.  Ch.  683  ;  12  W.  K  1141  ;  10  L.  T. 
N.  S.  900;  Donaldson  u.  Donaldson,  Kay,  711;  Lambe  v.  Orton,  1  Dr  &  Sm. 
125 ;  Voyle  v.  Hughes,  2  Sm.  &  Gif.  18  ;  S.  C.  23  L.  J.  Ch.  238  ;  18  Jur.  341  ;  2 
Eq.  Rep.  42 ;  2  W.  R.  143  ;  ^Vay's  Settlement,  10  Jur.  (N.  S.)  11G6  ;  S,  C.  34  L. 
J.  Ch.  49;  reversing  4  New.  R.  453;  Elliott's  Appeal,  50  Pa.  St.  75.  Contra, 
Pearson  v.  Amicable  Office,  27  Beav.  229 ;  Sloan  r.  Cadogan,  Sugd.  V.  &  P. 
App.  ;  Fortesque  v.  Barnett,  3  My.  &  K.  36;  Roberts  v.  Lloyd,  2  Beav.  376; 
Blakely  r.  Brady,  2  Dru.  &  Wal.  311  ;  Airey  v.  Hall,  3  Sm.  &.  Gif.  315;  Parnell 
V.  Hingston,  3  Sm.  &.  Gif.  337. 

3  Woodford  v.  Charnley,  28  Beav.  96.  But  see  Richardson  v.  Richardson,  3  L. 
R.  Eq.  686  ;  S.  C.  15  W.  R.  690 ;  36  L.  J.  Ch.  653. 

It  should  be  observed  that  this  section  has  no  application  to  instances  where 
the  donor  has  constituted  himself  a  trustee. 


Voluntary  Trusts.  429 

428.  DoxEE  Divesting  Himself  of  the  EquiTxVble 
Title. — If  the  donor  has  only  an  equitable  title  to  the 
subject-matter  of  the  gift,  he  may  still  create  a  trust  of 
the  property  by  the  execution  of  an  assignment  of  all  his 
interest  to  a  trustee  for  the  donee,  and  the  original  settler 
need  not  he  called  upon  to  do  any  act.  Justice  Bruce 
has  very  well  illustrated  this  question  by  saying :  *'  Sup- 
pose stock  or  money  to  be  legally  vested  in  A  as  a  trustee 
for  B  for  life,  and  subject  to  B's  life-interest  for  C  abso- 
lutely, surely  it  must  be  competent  for  C,  in  the  lifetime 
of  B,  with  or  without  the  consent  of  A,  to  make  an 
effectual  gift  of  his  interest  to  D  by  way  of  pure  bounty, 
leaving  the  legal  interest  and  legal  title  untouched.  If 
so,  can  C  do  this  better  or  more  effectually  than  by  ex- 
ecuting an  assignment  to  D  "  ?  ^  So  it  has  been  held 
that  the  beneficiary  can  direct  the  trustee  to  hold  his 
interest  thereafter  on  new  trusts;^  or  he  can  assign  his 
equitable  interest  to  a  stranger  in  trust  for  himself.^ 

429.  Failure  to  Name  Beneficiary. — A  trust  does 
not  necessarily  fail  where  the  donor  has  foiled  to  name 
the  donee  or  beneficiary.  Thus  where  a  trust  was  created 
by  deed,  without  containing  the  name  of  the  beneficiary, 
the  person  actually  intended  to  receive  the  benefit  was 

» Kekewick  v.  Manning,  1  De  G.,  M.  &  G.  176  ;  S.  C.  21  L.  J.  Ch.  577 ;  16  Jur. 
625.  Other  cases,  Sloan  v.  Cadogan,  Sugd.  V.  &  P.  App. ;  Vovle  v.  Iluglics.  2 
Sra.  &  Gif.  18;  S.  C.  23  L.  J.  Cli.  238;  18  Jur.  341 ;  2  Eq.  Rep.  42;  2  W.  R. 
143;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Gilbert  v.  Overton,  2  Hem.  &  M.  110; 
Ways'  Settlement,  10  Jur.  (N.  S.)  1166  ;  S.  C  34  L.  J.  Ch.  49  ;  2  De  G.,  J.  &  Sm. 
365,  reversing  4  New  R.  453;  "Woodford  v.  Chamley,  28  Beav.  96;  Southerland 
V.  Southerland,  5  Bush.  591. 

'^Rycr  .ft  V.  Christy,  3  Beav.  238;  McFadden  v.  Jenkyns,  1  Hare,  458;  S.  C.  1 
Phil.  153. 

'Sloan  V.  Cadogan,  siLpra;  Wilcocks  ;•.  Hannyngton,  5  Ir.  Ch.  38  ;  Godsal  v. 
Webb,  2  Keen,  99  ;  Cotteen  v.  Missing,  1  Madd.  176  ;  Collinson  v.  Pattrick,  2  Keen, 
123.  Of  course  a  mere  expectancy  is  not  the  subject  of  a  trust ;  Meek  v.  Kettle- 
well,  1  Hare,  464;  affirmed  1  Phil.  342. 


430  •  Gifts. 

allowed  to  enforce  it  against  the  trustee  upon  the  latter's 
testifying  at  the  trial  that  the  plaintiff  was  the  person  in- 
tended as  the  object  of  the  donor's  bounty.^  A  deed  of 
gift  to  a  trustee  to  hold  the  property  in  trust  for  such 
persons  as  the  donor  may  thereafter  name  is  valid,  but 
not  until  the  beneficiaries  are  named  according  to  the  mode 
designated  in  the  deed.^  But  if  it  is  uncertain  who  the 
donee  is  the  trust  must  fail.^  If  the  donor  was  to  in- 
form the  trustee  for  whom  the  trust  was  created,  during 
his  lifetime,  merely  leaving  a  paper  among  his  writings, 
containing  the  names  of  the  beneficiaries  will  not  be  sufii- 
cient.* 

430.  Deed  of  Gift  as  a  Testamentry  Instrument. — 
It  is  no  unfrequent  occurrence  that  a  deed  of  gift,  or  other 
written  instrument  of  gift,  contains  words  of  promise  of 
an  entirely  future  character,  not  in  prcesenti,  but  ex- 
pressing a  desire  to  give,  even  at  the  death  of  the  donor. 
Efforts  have  been  made  to  support  these  instruments  as 
wills ;  and  this  can  usually  be  done  when  they  are  exe- 
cuted in  accordance  with  the  statute  of  wills.^  In  the 
case  just  cited  the  donor,  a  mortgagee,  wrote  the  mort- 
gagor, saying :  "  I  now  give  you  this  gift,  to  become  due 
at  my  death,  unconnected  with  my  will.  I  hereby  re- 
quest my  executors  to  cancel  the  mortgage  deed,  bond, 
indenture,  and  all  papers  I  may  have  chargeable  on  E, 
[the  mortgaged  estate]  at  my  death,  and  give  [the  same] 

'  Sleeper  v.  Lselin,  62  la.  583  ;  Boardman  v.  Willard,  73  la.  20.  But  the  con- 
trary has  been  held.     See  Holland  v.  Alcock,  108  N.  Y.  312. 

^Ireland  v.  Geraghtv,  11  Biss.  4H5. 

^Roberts  v.  Roberts,  11  Jiir.  N.  S.  992;  14  W.  R.  123;  13  L.  T.  N.  S.  492;  12 
Jur.  N.  S.  971. 

*Boyes  v.  Carrkt,  26  L.  R.  Ch.  Div.  531  ;  S.  C.  53  L.  J.  Ch.  654;  50  L.  T.  581  ; 
32  W.R.  630;  King's  Estate,  21  L.  R.  Ir.  273. 

5  Scales  V.  Maude,  6  De.  G.,  M.  &  G.  43  ;  1  Jur.  N.  S.  533,  1147  ;  25  L.  J.  Ch. 
433 ;  3  VV.  R.  527  ;  Dipple  v.  Corles,  11  Hare,  183. 


Voluntary  Trusts.  431 

to  you  or  your  daughter  or  daughters  then  living  for  their 
own  use."  It  was  hekl  that  this  gift  was  void,  because 
it  was  a  promise  entirely  in  the  future,  in  the  nature  of  a 
will. 

431.  Necessity  for  Is^steument  of  Gift  to  be 
Under  Seal. — Elsewhere  has  been  discussed  whether  a 
deed  or  written  instrument  of  gift  must  be  under  seal  to 
dispense  with  an  actual  delivery  of  the  subject-matter  of 
the  gift ;  and  it  was  there  seen  that  the  cases  are  at  vari- 
ance on  the  subject.  But  it  may  be  deemed  settled  in 
England  that  a  court  of  equity  will  not  enforce  a  volun- 
tary contract  or  covenant,  though  it  be  under  seal.^  In 
this  country  it  has  been  intimated  that  a  contract  under 
seal  could  be  enforced  '^  and  where  the  distinction  between 
sealed  and  unsealed  instruments  had  been  abolished  by 
statute,  an  unsealed  voluntary  contract  was  enforced.^ 

432.  Donee  Induced  to  Change  His  Situation  by 
Promise  of  Donor  to  Give. — The  attempt  has  been 
made  to  uphold  a  promise  to  give,  made  by  the  donor  to 
the  donee,  when  that  promise  has  been  such  as  to  induce 
the  donee,  to  the  knowledge  or  at  the  request  of  the 
donor,  to  so  change  his  pecuniary  situation  or  condition 
that  a  failure  to  keep  the  promise  would  entail  upon  the 
donee  a  definite  pecuniary  injury  or  loss.  But  such  a 
promise,  if  it  fall  short  of  a  contract,  is  not  binding,  and 
cannot  be  enforced,  either  as  a  gift  outright  or  as  amount- 
ing to  the  creation  of  a  trust.  Thus  an  intestate  induced 
a  woman  to  serve  him  as  his  housekeeper  without  wages 

1  Hale  V.  Lamb,  2  Eden,  292  ;  Evelyn  v.  Templar,  2  Bro.  Ch.  148;  Colnian  v. 
Sarel,  3  Bro.  Ch.  12 ;  Kekewich  v.  Manning,  1  De  G.  &  M.  176 ;  Dening  v.  "Ware, 
22  Beav.  184. 

''Kennedy  v.  Ware,  1  Barr.  445;  Mclntire  r.  Hnghes,  4  Bibb.  186;  Dennison 
V.  Goehring,  7  Barr.  175;  Caldwell  ?•.  Williams,  1  Bailey  (S.  C.  Eq.)  175. 

^  Mahan  v.  Malian,  7  B.  Mon.  579.     But  see  Trough's  Estate,  75  Pa.  St.  115. 


432  Gifts. 

for  many  years,  and  to  give  up  other  prospects  of  estab- 
lishment in  life,  by  a  verbal  promise  to  make  a  will  leav- 
ing her  an  estate  for  her  life  in  his  farm,  and  he  after- 
ward made  and  signed  a  will,  not  duly  attested,  by  which 
he  left  her  the  life  estate.  The  court  found  that  there 
was  no  contract,  no  promise  to  j^ay  wages,  that  she  could 
have  left  him,  or  he  could  have  turned  her  away,  at  any 
time  without  incurring  a  liability  ;  that  her  acts  did  not 
constitute  a  part  performance,  such  as  is  required  by  the 
statute  of  frauds  ;  and  that  she  could  not  maintain  an  ac- 
tion for  a  declaration  that  she  was  entitled  to  a  life  estate 
in  the  land.^  So  where  a  land-owner  agreed  with  his 
brother  that  if  he  would  forego  his  intention  to  move  to 
the  West,  and  marry  and  settle  on  a  tract  of  land  owned 
by  the  former  he  would  convey  the  land  to  him  in  fee, 
whereby  the  brother  was  iuduced  to  give  up  his  intention 
to  go  West,  having  incurred  no  exj^ense  by  abandoning 
his  design,  it  was  held  that  there  was  not  such  a  consid- 
eration  to  supjDort  the  agreement  as  a  court  would  decree 
its  performance.^ 

433.  Orders  Addressed  by  a  Creditor  to  His 
Debtor  or  Depositary  of  a  Fund. — A  donor  may 
create  his  debtor  or  person  holding  his  funds  on  deposit  a 
trustee  for  the  donee,  either  by  a  parol  direction  to  the 
creditor  or  depositee  or  by  an  instrument  in  writing  di- 
rected to  him.  Thus  a  donor,  when  his  claim  fell  due, 
orally  communicated,  through  a  third  person,  to  the  debtor 
a  desire  that  he  hold  the  fund  in  trust  for  a  designated 
donor,  which  the  debtor  consented  to  do ;  it  was  held  that 

^Maddison  v.  Alderson,  8  L.  R.  App.  Cas.  467;  52  L.  J.  Q.  B.  737;  49  L.  T. 
303 ;  31  W.  R.  820 ;  affirming  7  L.  R.  Q.  B.  Div.  174 ;  50  L.  J.  Q.  B.  466;  45  L. 
T.  334 ;  29  W.  R.  556  ;  Loffus  r.  Maw,  3  Giff.  592  ;  S.  C.  32  L.  J.  Ch.  49 ;  8  Jur. 
N.  S.  607;  6  L.  T.  N.  S.  346  ;  10  W.  R.  513,  disapproved  ;  Peckham  v.  Taylor, 
6  L.  T.  N.  S.  487. 

"  Keed  V.  Vannorsdale,  2  Leigh,  569. 


I 


Voluntary  Trusts.  433 

there  was  a  valid  gift  which  was  binding  on  the  donor's 
estate.^  So  where  a  creditor  directed  his  debtor  to  transfer 
the  debt  in  his,  the  debtor's,  books  to  the  joint  account  of 
himself,  the  creditor,  and  his  wife,  stating  that  he  desired 
her  to  have  it  after  his  death,  and  he  cancelled  the  debtor's 
promissory  note  which  he  held  for  the  amount  of  the  debt, 
and  took  a  new  one  in  the  joint  names  of  himself  and  wife, 
it  was  considered,  the  wife  surviving  him,  that  he  had 
created  a  trust  in  her  favor,  and  that  she  was  entitled,  as 
survivor,  to  the  note.^  Even  an  unsigned  memorandum 
will  be  sufficient  to  create  a  trust  when  it  is  used  as  a  di- 
rection by  the  donor  to  his  debtor  to  transfer  his  debt  to 
a  trustee  or  to  himself  to  hold  as  a  trustee ;  and  the  trust 
when  thus  created  is  irrevocable.^  But  where  a  testator, 
who  had  lent  £300  on  note,  payable  on  demand,  directed 
the  maker,  after  her  death,  to  pay  the  interest  to  her  sister 
for  life,  and  afterward  to  divide  the  principal  among  her 
sister's  children,  which  the  maker  agreed  to  do,  and  the 
payee  died  without  having  demanded  payment  of  the  note, 
which  was  found  uncancelled  among  her  papers  at  her 
death,  it  was  held  that  she  had  not  parted  with  her  legal 
title  to  the  money,  and  that  the  direction  did  not  create  a 
gift.*  A  testatrix  by  will  gave  to  the  defendant  a  legacy 
of  £100,  and  afterward  gave  a  check  on  her  bankers  in 
favor  of  A  for  £150,  with  verbal  directions  to  apply  so 
much  of  it  as,  with  the  legacy,  would  purchase  a  share 
of  stock  in  a  railway  company,  which  she  desired  to  give 
instead  of  the  legacy,  not,  however,  desiring  to  alter  her 

'  M'Fadden  v.  Jenkyns,  1  Ph.  153 ;  12  L.  J.  N.  S.  Ch.  146 ;  7  Jur.  27 ;  affirming 
1  Hare,  458;  11  L.  J.  N.  S.  Ch.  281 ;  6  Jur.  501. 

*  Gosling  V.  Gosling,  3  Drew,  335. 

^Paterson  r.  Murphy,  17  Jur.  298;  S.  C.  22  L.  J.  Ch.  882.  See,  gener- 
ally, Parker  v.  Stones,  38  L.  J.  Ch.  46;  S.  C.  19  L.  T.  N.  S.  259;  Thorpe 
V.  Owen,  5  Beav.  224 ;  S.  C.  11  L.  J.  Ch.  N.  S.  129 ;  Crawford's  Appeal,  61 
Pa.  St.  52. 

*Bulbeck  v.  Silvester,  45  L.  J.  Ch.  280. 
28 


434  Gifts. 

-will  so  as  to  make  the  addition  to  the  legacy.  After  the 
amount  of  the  check  was  credited  to  A,  the  account  of  the 
testatrix  to  that  amount  was  overdrawn.  It  was  held  that 
there  was  no  trust  raised  nor  gift  perfected.  The  court 
doubted  whether  the  donor  had  relinquished  all  dominion 
over  the  gift,  but  did  not  hesitate  to  draw  the  conclusion, 
and  to  base  its  judgment  uj)on  it,  that  "  the  testatrix  in- 
tended the  arrangement  to  supply  the  place  of  an  altera- 
tion in  her  will,  and  to  stand  upon  the  same  footing  as  a 
will ;  "  ^  and  for  that  reason  the  gift  was  void.^ 

434.  Covenant  to  Give  Upon  a  Contingency. — A 
covenant  or  agreement  to  give  upon  a  certain  contingency, 
or  when  a  certain  event  hapj)ens,  is  nothing  more  than  a 
promise  to  give,  and  is  not  enforceable,  although  the  con- 
tingency comes  to  pass  or  the  event  takes  place.  Such  is 
a  covenant  to  convey  all  property  which  the  donor  may 
thereafter  acquire,  although  he  may  acquire  jDroperty 
thereafter ;  so  a  covenant  to  convey  by  a  certain  time 
certain  described  property,  then  in  existence,  if  the  cove- 
nanter by  that  time  acquires  the  title,  and  the  contingency 
arose,  is  nothing  more  than  a  promise  to  give.^ 

435.  Donor  Reserving  Control  Over  Trust  Fund 
AS  Trustee. — The  gift  is  not  defeated  by  the  fact  that  the 
donor  reserves  control  over  the  gift  or  fund  given  as 
trustee.*     Thus  a  merchant  in  China  wrote  to  his  corre- 

iHughes  V.  Stubbs,  1  Hare,  476;  S.  C.  6  Jur.  831. 

^Scales  V.  Maude.  3  W.  R.  527;  1  Jur.  N.  S.  533,  1147  ;  6  De  G.,  M.  &  G.  43; 
25  L.  J.  Ch.  433.  Where  a  father  directed  his  creditor  to  give  him  a  note  in  the 
name  of  his,  the  father's,  daughter,  and  tlie  daughter  took  it  surreptitiously  from 
her  father's  possession,  it  was  held  that  the  father  could  not  appoint  himself 
trustee  for  her  and  make  a  valid  delivery  of  his  own  property  as  such  trustee; 
nor  did  his  promise  to  give  her  the  note  make  him  a  trustee :  Hatton  v.  Jones,  78 
Ind.  466. 

^Wilkinson  v.  V^'^ilkinson,  4  Jur.  N.  S.  47. 

* "  That  a  person  can  so  constitute  himself  a  trustee  of  a  fund,  reserving  to  him- 


Voluntary   Trusts.  '  435 

spondents  in  London  to  transfer  £1,000  from  his  tea  ac- 
count, and  em^Dloy  it  in  exchange  transactions  for  the 
benefit  of  his  chiklren.  In  subsequent  letters  he  wrote 
to  the  same  correspondents  "  that  lie  declined  giving  any 
opinion  as  to  the  reinvestment  of  the  fund,  as  he  consid- 
ered he  had  no  further  control  over  it,  as  it  belonged  to 
his  children,"  "  that  he  had  appropriated  it  to  them,  and 
his  correspondents  were  to  consider  it  as  theirs."  His 
correspondents  accordingly  opened  a  separate  account, 
headed  "A.  V.,  exchange  account  on  account  of  children," 
previously  informing  him  of  their  intent  so  to  do.  The 
court  decreed  that  a  trust  was  well  raised  by  the  first  let- 
ter in  favor  of  the  children,  although  the  fund  was  still  so 
far  in  the  control  of  the  donor  as  to  be  liable  to  his  draAv- 
ing ;  and  that,  too,  notwithstanding  the  donor,  in  one  of 
his  letters,  had  desired  his  correspondents  to  consider  it 
as  "subject  to  the  order  of  his  executors"  in  the  event  of 
his  death.^  So  where  a  donor  had  £3,000  in  the  hands 
of  her  bankers  upon  their  promissory  note,  and  she  sent 
the  note  to  them,  directing  them  to  place  £2,000  in  the 
joint  names  of  the  donees  and  herself  as  trustee  for  them  ; 
and  they  made  an  entry  in  their  bank-books  to  her  account 
as  trustee  for  the  donees,  and  gave  her  a  signed  receipt  or 
note  for  it,  reading  as  follows :  "Fourteen  days  after  siglit 
I  promise  to  pay  H.  O.  [the  donor]  trustee  for  A,  C,  and 
B,  D,  [the  donees]  or  order,  £2,000,  with  interest  at  2h 
per  cent. ;"  it  was  held  that  this  was  a  valid  gift,  although 
it  is  clear  that  he  retained  control  over  the  fund  by  rea- 
son of  the  document  which  he  received.-  So  where  a  tc^- 
tator  wrote  his  agent  in  Paris  to  purchase  an  annuity  for 

self  at  the  same  time  the  control  of  a  trustee  over  the  fund,  is  clear  from  many 
authorities,  and  amongst  others  from  Wheatley  v.  Purr,  1  Keen,  551 :"  Vandenberg 
V.  Palmer,  4  Kay  &  J .  204. 

^  Vandenberg  v.  Palmer,  supra. 

^  Wheatley  v.  Purr,  supra. 


436  Gifts. 

the  benefit  of  Lady  A,  and  the  purchase  being  so  made, 
but  in  the  name  of  the  donor,  for  the  reason  that  the 
donee  was  then  insane ;  and  afterward  the  testator  sent  a 
power  of  attorney  to  the  agent  empowering  him  to  trans- 
fer the  annuity  to  the  donee,  but  the  donor  died  before 
the  transfer  was  made,  thus  working  a  revocation  of  the 
power  of  attorney,  yet  the  court  upheld  the  gift,  upon  the 
ground  that  he  had  committed  to  writing  a  sufficient 
declaration  that  he  held  that  part  of  his  estate  in  trust 
for  the  annuitant/ 

436.  Revocation. — AVhen  a  trust  has  been  completely 
created,  by  no  act  of  the  donor  can  it  be  revoked  without 
the  consent  of  the  donee,  unless  he  has  reserved  the  power 
to  do  so.^  This  is  true  even  though  by  some  accident  the 
estate  has  become  revested  in  the  donor.^     The  donor  is 

^  Ex  parte  Pye,  18  Ves.  140.  But  if  all  the  facts  of  the  case  show  that  the  donor 
did  not  then  intend  to  relinquisli  his  control  over  the  fund,  as  the  owner,  but  in- 
tended to  control  it  as  owner,  and  not  as  trustee,  the  gift  is  void:  Smith  v.  Warde, 
15  Sim.  56 ;  Garrard  v.  Lord  Lauderdale,  3  Sim.  1  ;  S.  C.  2  E.  &  M.  451 ;  Hughes 
r.  Stubbs,  1  Hare,  476;  Gaskell  v.  Gaskell,  2  Y.  &  J.  502  (explained  in  Vanden- 
berg  V.  Palmer,  4  Kay  &  J.  204).  See  Forbes  v.  Forbes,  6  W.  E.  92 ;  S.  C.  3  Jur. 
!N^.  S.  1206,  wliere  the  retention  of  control  by  the  donor  defeated  the  gift ;  and 
Evans  V.  Jennings,  4  Jur.  N.  S.  551 ;  S.  C.  6  VV.  E.  616,  where  the  trust  was  up- 
held because  the  donor  dealt  with  the  fund  given  as  trustee. 

-Sargent  v.  Baldwin,  60  Vt.  17  ;  Light  v.  Scott,  88  III.  239;  Tolar  v.  Tolar,  1 
Pev.  (N.  C.)  Eq.  4G0  (destroyed  the  deed)  ;  Dawson  r.  Dawson,  1  Dev.  (N.  C.)  Eq. 
93  ;  Way's  Trusts,  10  Jur.  N.  S.  836  ;  S.  C.  2  De  G.,  J.  &  Sm.  365  ;  Appeal  of  Eitter, 
59  Pa.  St.  9 ;  Newton  v.  Acken,  11  Beav.  145  ;  Garner  v.  Germania  Life  Ins.  Co., 
110  N.  Y.  266 ;  Nearpass  v.  Newman,  106  N.  Y.  47  ;  Meiggs  v.  Meiggs,  15  Hun,  453  ; 
McPhersonr.  EolHns,  107  N.  Y.  316;  Gulick  v.  Gulick,  39  N.  J.  Eq.  401 ;  Wil- 
liams V.  Vreeland,  32  N.  J.  Eq.  135 ;  Cobb  v.  Knight,  74  Me.  253 ;  Sewall  v. 
Eobert.s  115  Mass.  262  ;  Viney  v.  Abbott,  109  Mass.  300 ;  Dennison  v.  Goehring, 
7  Birr,  175;  Falk  v.  Turner,  101  Mass.  494;  Stone  v.  Hackett,  12  Gray,  227; 
Hildreth  v.  Eliot,  8  Pick.  293. 

3  Ellison  V.  Ellison,  6  Ves.  656  ;  Smith  v.  Lyne,  2  Y  &  Coll.  N.  C.  345 ;  Patersnn  v. 
Murphy,  11  Hare,  88  ;  Gilchrist  ?•.  Stevenson,  9  BMib.  9;  Uzzle?'.  Wood,  1  Jones 
(N.  C.)  Eq.  226  ;  Browne  ?'.  Cavendish,  1  J.  <^  L.  637.  All  parties  interested  must 
consent:  Hellman  v.  McWilliams,  70  Cal.  449;  and  if  one  be  an  infant,  there  can 
be  no  revocation  :  Isham  v.  Delaware,  etc.,  R.  Co  ,  3  Stockt.  (N.  J.)  227. 


Voluntary  Trusts.  437 

bound,  if  tlie  trust  be  completed,  though  some  contingency 
was  forgotten  and  unprovided  for ;  ^  and  if  the  trust  is 
created  by  deed  a  mental  or  oral  revocation  is  void.^  But 
the  donor  may  reserve  the  right  to  revoke  the  trust;"  and 
the  trust  will  remain  until  he  exercise  his  authority  under 
the  power  reserved.*  If  the  donor  provides  that  the  trust 
estate  shall  be  subject  to  such  debts  as  he  may  contract 
during  his  life,  the  reservation  is  good  ;  and  to  the  amount 
of  the  debts  contracted  it  will  be  revoked,  but  no  further.^ 
And  it  should  be  observed  generally,  that  the  failure  on 
the  part  of  the  donor  to  reserve  the  power  to  revoke  the 
trust  is  regarded  by  courts  of  equity  as  a  circumstance  of 
suspicion,  and  slight  evidence  of  a  mistake  or  misunder- 
standing on  the  j^art  of  the  donor  will  enable  them  to  set 
aside  the  trust.'^ 

437.  Preventing  the  Making  of  a  Gift  by  Will. 
— In  a  few  instances  the  attempt  has  been  made  to  create 
a  trust  where  the  donor  was  prevented  from  executing  a 
will  to  create  the  trust  or  make  a  gift,  or  was  informed  that 
it  was  not  necessary  to  the  validity  of  the  proposed  gift 
to  include  it  in  his  will.  Thus  where  a  testator  intended 
to  give  a  note  to  the  maker,  and  thus  cancel  the  debt,  but 
was  advised  by  the  scrivener  that  he  might  effectually  de- 
clare his  intention  on  the  back  of  the  note,  and  he  wrote 

'  Keyer  v.  Carleton,  141  Mass.  45. 

2  Wallace  v.  Berdell,  97  N.  Y.  13. 

^  Aubuchon  v.  Bender,  44  Mo.  560 ;  Dean  v.  Adler,  30  Md.  147  ;  Bealf.  Warren, 
2  Gray,  447  ;  Hall  v.  Hall,  14  L.  R.  Eq.  365.  See  Pulvertoft  v.  Pnlvertoft,  18 
Ves.  84 ;  Worrall  v.  Jacob,  3  Meriv.  256. 

*  Van  Cott  V.  Prentice,  104  N.  Y.  45. 

^Markwell  v.  IMarkwell,  34  Beav.  12. 

«Garnsey  r.  Mundy,  24  N.  J.  Eq.  243 ;  S.  C.  13  Amer.  L.  Reg.  345 ;  Eaton  ;•. 
Tillinghast.  4  R.  I.  276  ;  Russell  s  Appeal.  75  Pa.  St.  269;  Everitt  v.  Everitt,  10 
L.  R.  Eq.  405;  Wallastonr.  Tribe,  9  L.  R.  Eq.  44;  Coutts  v.  Acworth,  8  L.  R. 
Eq.  558  ;  Prideaux  v.  Lonsdale,  1  De.  G.,  J.  &  S.  433  ;  Hall  v.  Hall,  14  L.  R.  Eq. 
365;  S.  C.  8  Ch.  App.  430;  Evans  v.  Russell,  31  Leg.  Int.  125;  Nightingale  v. 
Nightingale,  13  R.  I.  113. 


438  Gifts. 

on  it  accordingly;  and  lie  frequently  spoke  to  his  wife, 
who  was  the  residuary  le2;atee,  that  he  desired  her  to  de- 
liver  up  at  his  death  the  note  to  the  maker,  and  she  led 
him  to  believe  that  she  would  do  so,  and  after  his  death 
actually  promised  to  do  so ;  it  was  held  that  equity  would 
enjoin  its  collection,  and  not  permit  the  wife  to  reaj)  an  ad- 
vantage by  her  deceitful  actions.^  So  if  the  donor  make 
an  absolute  bequest  of  property  to  another,  with  a  verbal 
agreement  with  the  legatee  that  he  will,  at  his  death,  dis- 
pose of  the  property  equally  between  the  donor's  and  the 
legatee's  relatives,  a  trust  is  thereby  created  in  favor  of 
such  relatives,  which  will  be  enforced  by  a  court  of  equity'- 
if  the  legatee  fail  to  perform  the  agreement.  In  such 
an  instance  it  is  fair  to  assume  that  the  donor  would  have 
directed  in  his  will  the  course  of  the  property  he  desired 
it  to  take,  if  it  had  not  been  for  the  legatee's  promise.^ 
But  it  will  be  observed  in  each  one  of  these  cases  that  the 
person  violating  his  promise,  or  preventing  the  creation  of 
the  trust,  reaped  a  benefit  if  the  trust  were  overthrown, 
and  it  is  upon  that  ground  that  the  cases  rest.  If  the 
j^erson  making  the  promises  receives  no  benefit  under  the 
will,  then  no  trust  is  created.  Thus  where  the  defendant, 
at  the  time  the  testator  made  his  will,  promised  him  to  give 
one  of  his  children  as  much  property  as  the  testator  would 
be  able  to  give  his  other  children,  and  thereby  induced 
him  to  give  such  child  a  part  of  his  estate,  the  promise  is 
without  consideration,  and  no  trust  is  created  in  favor  of 
the  child  that  can  be  enforced  against  the  person  making 
the  promise.^     So  where  a  testatrix,  the  morning  of  her 

^  Kichardson  v.  Adams,  10  Yerg.  273. 

^McLellan  v.  McLean,  2  Head.  684;  Podmore  v.  Gunning,  7  Sim.  644; 
Williams  v.  Fitcli,  18  N.  Y.  546  ;  Chamberlaine  v.  Ciiamberlnine,  Freem.  Ch. 
34;  Devenish  v.  Baines,  Prec.  Ch.  3;  Oldham  v.  Litehtield,  2  Yern.  506; 
Barrow  v.  Greenougli,  3  Ves.  152;  Hoge  v.  Hoge,  1  Watts,  163;  Eeech  v. 
Kennegal,  1  Ves.  Sr.  123. 

^  Kobinsoa  r.  Denson,  3  Head.  395. 


Voluntary  Trusts.  439 

death,  called  lier  executor  and  asked  liim  if  lie  could 
not  as  executor  cancel  and  give  up  a  note  she  held 
against  a  third  person,  and  he  said  he  could  and  so 
promised;  and  the  executor  testified  that  if  he  had 
not  made  the  promise  the  testatrix  "would  undouhtedly 
have  added  a  codicil  to  her  will,  giving  the  note  to 
the  maker;  the  court  held  that  there  was  no  valid 
trust  created.^ 

438.  Good  or  Meeitorious  Coxsideratiox. — How 
far  will  a  good  or  meritorious  consideration  support  a 
trust,  or  authorize  a  court  of  equity  to  enforce  a  voluntary 
conveyance  ?  By  a  good  or  meritorious  consideration  is 
meant  that  which  arises  from  blood  or  natural  affection 
between  near  relatives,  or,  as  Blackstone  has  it :  "  Such 
as  that  of  blood,  or  of  natural  love  and  affection,  when  a 
man  grants  an  estate  to  a  near  relation,  being  founded  on 
motives  of  generosity,  prudence,  and  natural  duty."  ^  In 
England  it  was  decided  that  such  a  consideration  was 
sufficient  to  support  a  deed  and  that  it  would  be  enforced 
against  the  donor  in  fiivor  of  a  wife  or  cliild.^  This  de- 
cision, however,  was  received  with  disfavor,**  and  was 
finally  overruled.^  So  that  it  may  be  considered  settled 
in  that  country  that  such  a  consideration  is  not  sufiicient 
for  the  enforcement  of  a  voluntary  trust.^  But  there  is  a 
limitation  to  this  statement.  For  if  the  donor  execute  a 
voluntary  conveyance  upon  good  consideration,  and  die 
before  the  trust  is  completed,  a  court  will  enforce  it  against 

^  Sims  V.  Walker,  8  Humph.  503. 

^  2  Black.  Com.  296,  297,  444.  See  Potter  v.  Gracie,  58  Ala.  303 ;  Clark  v. 
Troy,  20  Cal.  219  ;  Corwin  v.  Corwin,  9  Barb.  219,  225. 

^  iillis  V.  Nimmo,  L.  &  G.  (Tr.)  333. 

*Holloway  ?•.  Headington,  8  Sim.  324;  Jefferys  r.  Jefferys,  1  Cr.  &  Ph.  138; 
Dillon  V  Coppin,  4  My.  &  Cr.  047. 

'"  Moore  V.  Crafton,  3  Jon.  &  La.  442. 

^  Antrobus  v.  Smith,  12  Ves.  39  ;  Holloway  v.  Headington,  8  Sim.  324. 


440  Gifts. 

other  volunteers  under  a  subsequent  settlement ;  ^  or 
against  devisees  or  legatees;^  or  against  lieirs-at-law  or 
the  next  of  kin,^  though  not,  of  course,  against  purchasers 
for  value.*  In  America  the  tendency  is  to  uphold  and 
enforce  such  deeds  or  instruments,  with  the  distinction, 
perhaps,  that  they  must  be  under  seal ;  ^  and  they  must  be 
made  in  favor  of  the  wife  or  a  child,  and  not  in  favor  of 
a  brother,  sister,  nephew,  parent,'^  or  illegitimate  childJ 

439.  Maeeiage  Settlements. — The  subject  of  mar- 
riage settlements  is  foreign  to  the  plan  of  this  book,  but  it 
may  be  remarked  that  as  marriage  is  a  valuable  considera- 
tion, ante-nuptial  contracts  will  be  enforced  after  the  mar- 
riage is  actually  consummated.® 

^  Bolton  V.  Bolton,  3  Swanst.  414. 

2  lb. 

3  Watts  V.  Bullas,  1  P.  Wms.  60 ;  Goring  v.  Nash,  3  Atk.  186 ;  Eodgers  v. 
Marshall,  17  Yes.  294. 

*  Finch  V.  Winchelsea,  1  P.  Wms.  277.  A  subsequent  volunteer  cannot  defeat 
the  trust  by  pleading  a  good  consideration  :  Goring  v.  Nash,  3  Atk.  186 ;  Kodgers 
V.  Marshall,  17  Ves.  294.  It  may  even  be  doubted  if  a  good  consideration  will 
be  sufficient  to  support  an  action  for  a  specific  performance  in  that  country.  See 
Price  V.  Price,  14  Beav.  598;  Joyces.  Hutton,  11  Ir.  Ch.  123;  Colman  v.  Sarrel, 
1  Ves.  Jr.  50. 

^McTntire  v.  Hughes,  4  Bibb.  186  ;  Mahan  v.  Mahan,  7  B.  Mon.  579  ;  Bright  v. 
Bright,  8  B.  Mon.  194  ;  Hayes  v.  Kershow,  1  Sandf.  258  ;  Blackerby  v.  Holton,  5 
Dana,  520 ;  Tolar  v.  Tolar,  1  Dev.  (N.  C.)  Eq.  460 ;  Caldwell  v.  Williams,  1 
Baily  (S.  C),  Eq.  175. 

^  Buford's  Heirs,  1  Dana,  107  ;  Hayes  v.  Kershow,  1  Sandf.  258. 

^Fursaker  v.  Robinson,  Pr.  Ch.  475. 

sCaton  v.Caton,  L.  R.  1  Ch.  137;  S.  C.  34  L.  J.  Ch.  564;  on  appeal  L,  E.  2 
H.  L.  127  ;  S.  C.  36  L.  J.  Ch.  886 ;  14  L.  T.  34 ;  14  W.  E.  267  ;  Kay  v.  Crook,  3 
Sm,  &  G.  407  ;  Goldicutt  v.  Townsend,  28  Beav.  445  ;  Stone  v.  Stone,  L.  E.  5  Ch. 
74  ;  Crane  v.  Gough,  4  Md.  316  ;  S.  C.  3  Md.  Ch.  119. 


CHAPTER  XVI. 


FRAUD    AXD    UNDUE    INFLUENCE. 


440.  Gift  Procured  by  Fraud  or  Undue  453. 

Influence  is  Void.  454. 

441.  Amount  of  Influence  Necessary  to 

Avoid  Gift.  455. 

442.  Unsoundness    of    Mind  —  Mental  456. 

Weakness.  457. 

443.  Temper  and  Disposition  of  Donor.  458. 

444.  Age  of  Donor — Disease.  459. 

445.  Improvident  Gift  to  Stranger.  460. 

446.  Unequal  Distribution  of  Property  461. 

Among  Children.  462. 

447.  Value  of  Gift — Amount  of  Donor's  463. 

Remaining  Property.  464. 

448.  Donee  Preparing  Deed.  465. 

449.  Gift  Intended  to  Operate  as  a  Will.  466. 

450.  Mistake. 

451.  Power  of  Revocation,  Failure  to  467. 

Reserve.  468. 

452.  Witnesses  to  Gift. 


Importuning  Donor — Persuasion. 

Burden  to  Show  Fraud  or  Undue 
Influence. 

Confidential  Relations. 

Principal  and  Agent — Partners. 

Gift  by  Client  to  His  Attorney. 

Gift  to  Clergyman. 

Physician  and  Patient. 

Ante-Nuptial  Agreements. 

Father  to  Son. 

Son  to  Father. 

Brother  and  Sister. 

Gift  to  Mistress. 

Gift  of  Inebriate. 

Ward  to  Guardian — Son  to  Pa- 
rent. 

Wife  to  Husband. 

Who  May  Bring  Suit  to  Set  Aside 
Gift. 


440.  Gift  Procured  by  Fraud  or  Undue  Influ- 
ence IS  Void. — A  gift  procured  or  brought  about  by 
fraud  or  undue  influence  is  void.  The  fraud  or  illegal 
influence  that  will  avoid  a  o-ift  need  not  be  sufficient  to  set 

O 

aside  a  will  procured  in  the  same  way.  ''A  gift  by  will 
by  a  cestui  que  trust  to  his  trustee,  by  a  principal  to  his 
agent,  by  a  client  to  his  attorney,  or  by  a  ward  to  his 
guardian,  is  upheld  on  less  evidence  that  there  was  no 
fraud  or  undue  influence,  than  is  a  gift  in  piwsoiti.  If, 
however,  the  facts  disclose  that  the  person  taking  the 
benefit  be  instrumental  in  procuring  the  bequest,  then  the 
rule  would  not  be  modified  toward  him."  ^     In  speaking 

'  Decker  v.  Waterman,  67  Barb.  460  ;  Ilindson  v.  Weatherill  5  Dc  Gex.,  M,  &  G. 
301 :  Parfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462;  S.  C.  4  Moak,  087. 

441 


442  Gifts. 

of  the  difference  between  a  gift  inter  vivos  and  by  will, 
with  respect  to  the  presumption  of  undue  influence,  Lord 
Penzance  said  :  "  In  the  first  place,  in  those  cases  of 
gifts  or  contracts  inter  vivos  there  is  a  transaction  in 
which  the  person  benefited  at  least  takes  part,  whether  he 
unduly  urges  his  influence  or  not ;  and  in  calling  upon 
him  to  explain  the  part  he  took,  and  the  circumstances 
that  brought  about  the  gift  or  obligation,  the  court  is 
plainly  requiring  of  him  an  explanation  within  his 
knowledge.  But  in  the  case  of  a  legacy  under  a  will,  the 
legatee  may  have,  and  in  point  of  fact  generally  has,  no 
no  part  in  or  even  knowledge  of  the  act ;  and  to  cast  upon 
him,  on  the  bare  proof  of  the  legacy  and  his  relation  to 
the  testator,  the  burden  of  showing  how  the  thing  came 
about,  and  under  what  influence  or  with  what  motive  the 
legacy  was  made,  or  what  advice  the  testator  had,  jDrofes- 
sional  or  otherwise,  would  be  to  cast  a  duty  on  him  which 
in  many,  if  not  most,  cases  he  could  not  possibly  dis- 
charge. A  more  material  distinction  is  this  :  The  influ- 
ence which  is  undue  in  the  case  of  gifts  inter  vivos  is  very 
different  from  that  which  is  required  to  set  aside  a  will. 
In  the  case  of  gifts  or  other  transactions  inter  vivos  which 
such  relations  as  those  in  question  involve,  executed  by 
those  who  possess  it  to  obtain  a  benefit  for  themselves,  is 
undue  influence.  Gifts  or  contracts  brought  by  it  are, 
therefore,  set  aside  unless  the  party  benefited  by  it  can 
show  afiirmatively  that  the  other  party  to  the  transaction 
w^as  placed  '  in  such  a  position  as  would  enable  him  to 
form  an  absolutely  free  and  unfettered  judgment.'  "^ 

441.  Amount   of   Influence    Necessary  to  Avoid 
Gift. — The  influence  that  is  necessary  to  render  a  gift 

1  Parfitt  V.  Lawless,  L  E.  2  P.  &  D.  4G2 ;  S.  C.  41  L.  J.  P.  OS ;  27  L.  T.  215 ;  21 
W.  E.  200;  4  Moak,  G87;  Boyse  v.  Eossborougli,  6  H.  L.  Cas.  1,  49;  Archer  v. 
Hudson,  7  Beav.  551 ;  Pressley  v.  Kemp,  16  S.  C.  334 ;  S.  C.  42  Am.  Rep.  635. 


Fraud  and   Undue  Influence.  443 

void  must  be  especially  directed  in  favor  of  the  donee,  and 
must  be  sufficient  to  destroy  the  freedom  of  the  donor's 
will.  He  must  so  come  under  the  influence  of  the  person 
exercising  control  over  him  as  to  become  his  agent,  and 
be  subject  to  his  will.^  "  Undue  influence  consists  in  de- 
stroying the  freedom  of  the  donor's  will,  so  as  to  make 
his  act  rather  the  will  and  act  of  the  donee  than  his  own. 
And  such  influence  must  be  specially  directed  to  accom- 
plish the  thing  done.  If  the  mind  of  the  donor  was 
brought  to  a  j^urpose  preconceived  by  the  donee  for  his 
own  advantage,  by  an  influence  the  donor  could  not  es- 
cape, under  the  circumstances  in  which  she  was  placed, 
and  which  was  deliberately  used  to  effect  such  pur2D0se,then 
that  influence,  or  its  exercise,  was  undue  and  im2:)roper."  ^ 

442.  Ujs^soundness  of  Mind — Mental  Weakness. — 
If  the  donor  has  sufficient  mental  capacity  to  comprehend 
the  transaction  his  gift  will  be  valid,  although  he  has  not 
the  power  to  transact  business  generally.  Thus  where  a 
father  gave  a  son  some  stock,  and  at  the  time  he  had  suf- 
ficient mental  capacity  to  transact  business  with  his 
family,  although  not  to  transact  business  generally,  the 
gift  was  upheld,  there  being  no  suspicion  of  undue  in- 
fluence or  of  fraud.^  Mere  mental  weakness  will  not  au- 
thorize a  court  to  set  aside  an  executed  gift,  if  such  weak- 
ness does  not  amount  to  an  inability  to  comj^rehend  tlie 
transaction,  and  is  unaccompanied  by  evidence  of  imposi- 
tion or  undue  influence.^  If  it  is  shown  that  the  donor  and 

1  Allmon  V.  Pigg,  82  III.  149  ;  S.  C  25  Anier.  Rep.  303  ;  Woodbury  v.  "Wood- 
bury, 141  Mass.  329. 

2  Decker  t".  Waterman,  67  Barb.  400 ;  Hnrailton  v.  Armstrong,  20  S.  W.  Rep. 
1054;  Soberanes  v.  Soberanes,  31  Pac.  Rep.  910. 

^  Van  Deusen  r.  Rowley,  8  N.  Y.  358;  Kidder  v.  Stevens,  GO  Cal.  414.  See 
Riggs  ?'.  American  Tract  Society,  84  N.  Y.  330  ;  Brault  v  Brault,  1  Leg.  News, 
495;  :Moore  v.  Moore,  67  Mo.  192  ;  Rowland  v.  Sullivan,  4  Des.  Eq.  516. 

*  Willemin  x.  Dunn,  93  111.  511. 


444  Gifts. 

donee  bore  confidential  relations  to  each  otlier,  tlien  a 
weakness  of  mind,  even  though  not  to  the  extent  of  pro- 
ducing mental  unsoundness,  may  operate  to  overturn  the 
gift,  especially  if  such  a  gift  is  a  large  one  in  value  and 
consists  of  nearly  all  the  donor's  estate.^ 

443.  Temper  and  Disposition  of  Donor. — The  tem- 
per and  disposition  of  the  donor  are  always  facts  for  con- 
sideration. A  man  of  easy  temper  and  yielding  disposi- 
tion is  more  liable  to  be  imposed  upon  than  one  of  a  resolute 
disposition  and  firm  temper.  This  is  especially  true  if  he 
is  a  person  of  weak  mind.  In  such  an  instance  the  court 
will  look  with  a  jealous  eye  upon  the  transaction,  and  will 
very  strictly  examine  the  conduct  and  behavior  of  the 
donee.  If  it  can  discover  that  any  acts  or  stratagems  or 
undue  means  have  been  used  to  procure  the  gift;  if  it 
see  the  least  sj)eck  of  imposition  at  the  bottom  of  the 
transaction,  or  that  the  donor  is  in  such  a  situation  with 
respect  to  the  donee  as  may  naturally  give  the  latter  an 
undue  influence  over  him  ;  if  there  be  even  the  least  scin- 
tilla of  fraud,  the  court  will  inter230se  and  set  aside  the 
gift.^ 

444.  Age  of  Donor — Disease. — The  age  of  the  donor 
is  always  a  matter  for  consideration.  An  old  and  feeble 
man  is  not  always  as  able  to  resist  the  importunities  of 
those  near  him,  especially  when  his  mind  is  weakened  by 
disease,  as  a  man  in  the  full  vigor  of  life.  What  might 
be  a  valid  gift  in  the  latter  instance  might  very  probably 
be  void  in  the  former.^  If  a  person,  whose  mind  is  en- 
feebled by  disease  or  old  age,  and  who  is  so  placed  as  to  be 

^  Woodbury  v.  Woodbury,  141  Mass.  329. 

2  Sears  v.  Shafer,  1  Barb.  408 ;  affirmed  6  N.  Y.  268.  Tlie  declarations  of  tlie 
donor  made  shortly  after  the  gift,  showing  incapacity  of  mind,  are  admissible  in 
evidence:  Howell  v.  Howell,  59  Geo.  145;  Lane  v.  Moore,  151  Mass.  87. 

^  Hall  V.  Knappenberger,  97  Mo.  509. 


Fraud  and   Undue  Influence.  44-3 

subjected  to  the  influence  of  another  person,  makes  a  gift 
of  property  to  such  person,  the  gift  is  presumptively  void, 
and  the  burden  rests  upon  the  donee  to  show  that  the 
donor  understood  the  nature  of  the  act,  and  that  the  act 
was  not  done  through  the  influence  of  the  donee.^ 

445.  Improvident  Gift  to  Straxger. — If  a  gift  is 
free  from  the  imputation  of  fraud,  surprise,  or  undue  in- 
fluence ;  and  the  donor  and  donee  do  not  sustain  confi- 
dential or  fiduciary  relations  to  each  other,  and  such  gift 
is  spontaneously  executed,  it  will  not  be  set  aside  by  the 
courts,  although  it  is  highly  improvident  and  a  mere 
stranger  is  the  recipient  of  the  donor's  bounty,^  But  if 
the  donor  is  weak  of  mind,  the  amount  of  the  gift  is  quite 
a  potent  factor,  especially  if  it  is  made  to  one  bearing  con- 
fidential or  fiduciary  relations  to  him.^ 

446.  Unequal  Distribution  of  Property  Among 
Children. — An  heir  of  the  donor  cannot  insist  that  a  gift 
be  set  aside  merely  by  showing  that  the  donor  made  an 
unequal  or  unfair  distribution  of  his  23roperty  among  those 
who  had  claims  on  his  bounty.  The  fact  of  the  unequal 
distribution  may  be  shown,  but  that  fact  must  be  coupled 
with  other  facts  of  undue  influence,  fraud,  or  unsoundness 
of  mind  before  the  gift  can  be  avoided.* 

447.  Value  of  Gift — Amount  of  Donor's  Remain- 
ing Property. — Still  another  consideration  is  the  value 

^Haydock  v.  Hajdock,  34  N.  J.  Eq.  570;  Owing's  Case,  1  Bland  Ch.  370; 
Beeman  v.  Knapp,  13  Gr.  Cb.  398;  Soberanes  v.  Soberanes,  31  Pac.  Rep.  910. 

"  Willemin  v.  Dunn,  93  111.  511  ;  Yillers  v.  P>eanniont,  1  Vern.  100;  Ilugiienin 
V.  Baselev,  14  Ves.  273  ;  Eskridge  v.  Farrar,  30  La.  Ann.  718  ;  S.  C.  34  La.  Ann. 
709  ;  Twist  v.  Babcock,  48  Mich.  513. 

'Woodbury  v.  Woodbury,  141  Mass.  3'29.  "I  think  it  maybe  inferred  that 
amount  merely  may,  in  a  voluntary  transaction,  be  such  evidence  of  improvidence 
as  to  shift  the  onus  of  proof  to  the  recipient  of  the  bounty:"  Blake,  V.  C,  in 
Kersten  r.  Tane,  22  Gr.  Ch.  547. 

*  Moore  v.  Moore,  67  Mo.  192;  Carty  v.  Connolly,  91  Cal.  15. 


446  Gifts. 

of  the  gift.  A  gift  of  a  large  amount  of  property  calls 
for  a  greater  affection,  usually,  of  the  donor  for  the  donee 
than  one  of  a  small  value,  taking  into  consideration  the 
amount  of  the  donor's  wealth.  If  the  donor  had  but 
little  affection  for  the  donee,  then  the  gift  should  be 
viewed  more  closely  than  if  he  had  a  great  affection  for 
him.  Usually  men  do  not  act  without  a  motive,  unless 
impelled  by  some  exterior  and  uncontrollable  force,  and 
where  a  donor  has  but  little  or  no  affection  for  a  donee,  we 
may  well  look  about  for  some  exterior  and  impelling  force. 
So,  too,  the  amount  of  the  donor's  property  i-emaining 
after  he  has  made  a  gift  is  for  consideration,  unless  the 
gift  is  trifling  in  value.  A  donor  will  usually  not  strip 
himself  of  property  for  the  benefit  of  a  donee,  and  run 
the  risk  of  poverty  or  Avant.  The  amount  of  the  gift, 
other  things  being  even,  is  often  the  turning  point  in  its 
validity.^ 

448.  Donee  Preparing  Deed  of  Gift. — Where  the 
donee  j^repares  the  deed  of  gift,  the  transaction  is  viewed 
with  suspicion.  Indeed  such  a  transaction  is  viewed  very 
much  on  the  same  plane  as  a  gift  from  client  to  attorney. 
"  But  where  a  deed  is  prepared  by  the  person  himself, 
who  seeks  the  benefit  of  it,  without  the  intervention  of 
any  other  joerson,  that  circumstance  alone  is  sufficient  to 
raise  a  presumption  of  fraud  ;  and  the  instrument  is  to  be 
viewed  with  the  greatest  jealousy,  because  the  person  with 
whom  he  deals  is  thus  deprived  of  the  opportunity  of  any 
disinterested  assistance  on  the  subject ;  and  for  this  reason 
instruments  obtained  by  attorneys  from  their  own  clients 
are  always  viewed  with  extraordinary  jealousy."  ^ 

^  Hall  V.  Knappenberger,  97  Mo.  509  ;  Sears  v.  Shafer,  1  Barb.  408  ;  aflSrrued  6 
N.  Y.  268. 

-  Watt  V.  Grove,  2  Sch.  &  Lef.  492,  503.  The  solicitor  of  the  donee  preparing 
the  deed  does  not  change  the  presumption :     Plunter  v.  Atkins,  3  My.  &  K.  113; 


Fraud  and   Undue  Influence.  447 

449.  Gift  Ixtexded  to  Operate  as  a  Will. — Where 
there  was  confidential  relations  existins:  between  the  donor 
and  the  donee,  and  the  former  was  old  and  feeble,  and 
made  a  gift  of  property  to  such  donee ;  and  it  was  obvious 
that  the  donor  intended  the  gift  to  operate  as  a  will,  it 
was  held  that  the  latter  fact  presented  an  additional  reason 
for  imposing  upon  the  donee  the  burden  of  showing  con- 
vincingly the  validity  of  the  act.^ 

450.  Mistake. — A  gift,  though  untainted  by  fraud, 
will  always  be  set  aside  if  it  does  not  conform  to  tlie  in- 
tention of  the  donor,  or  if  executed  under  a  total  misap- 
prehension as  to  its  effect.  In  the  case  of  a  deed  of  gift,  the 
question  is  not,  did  the  donor  execute  the  deed  volun- 
tarily, but  with  full  knowledge  of  the  nature,  effect,  and 
consequences  which  the  law  gives  it.  To  be  upheld  it 
must  be  the  pure,  voluntary,  and  well  understood  act  of 
the  donor's  mind.  The  courts  will  not  recognize  any 
deed  of  gift  when  it  appears  that  there  was  any  defect  in 
the  understanding  of  the  nature  of  the  gift  on  the  part  of 
the  donor ;  if  the  deed  be  tainted  with  the  Avant  of  com- 
plete understanding  of  its  nature  by  its  author,  the  court 
must  treat  it  as  invalid,  and  consider  that  the  property 
did  not  i^ass.  In  such  an  instance  a  court  of  equity  will 
not  enforce  the  deed,  nor  enforce  what  the  grantor  actu- 
ally intended  to  do.^ 

St.  Leger's  Appeal,  34  Conn.  434 ;  Sears  v.  Shafer,  1  Barb.  408  ;  affirmed  6  N.  Y. 
268.  If  a  doubt  exists  as  to  whether  the  donor  knew  all  the  provisions  of  the 
deed,  it  is  void :  Greenfield's  Estate,  14  Pa.  St.  489 ;  Lansing  v.  Russell,  13  Barb. 
510. 

»Haydock  v.  Haydock,  34  X.  J.  Eq.  570;  Wlieeler  i'.  Glasgow,  11  So.  Rep. 
758. 

^Mulockv.  Mulock,  31  X.J.  Eq.  594;  S.  C.  32  X.  J.  Eq.  348;  Garnsey  r. 
Mundy,  24  X.  J.  Eq.  243;  Anderson  r.  Elswortli.  7  Jur.  X.  S.  1047;  S.  C.  3 
Giff.  154;  Hoghton  v.  Hoghton,  15  Beav.  278  ;  Toker  r.  Toker,  31  Bear.  644 ; 
Phillipson  i'.  Kerry,  32  Beav.  628;  Lister  v.  Hodgson,  L.  R.  4  Eq.  Cas.  30 ; 
Coutts  V.  Acworth,  I..  R.  8  Eq.  Cas.  558 ;  Wollaston  v.  Tribe,  L.  R.  9  Eq.  Cas.  44. 


448  Gifts. 

451.  Power  of  Eevocatigx,  Failure  to  Eeserve. — 
Where  the  gift  is  in  the  nature  of  a  settlement,  which 
usually  consists  of  laud  and  articles  of  great  value,  the 
failure  to  insert  in  the  deed  of  settlement  a  power  of  rev- 
ocation has  the  effect  to  cast  upon  the  transaction  a 
suspicion,  and  to  cast  upon  the  beneficiary  the  burden  of 
showing  that  there  was  a  distinct  intention  of  making  the 
gift  irrevocable.     Such  a  gift  may  be  set  aside.-^ 

452.  Witnesses  to  Gift. — If  the  gift  is  made  at  a  time 
when  the  donor  is  ill  and  feeble,  especially  if  the  donor 
and  donee  sustained  confidential  relations  to  each  other, 
and  it  is  unusual  and  rests  under  circumstances  of  suspi- 
cion, even  though  slight,  the  donor  must  call  all  witnesses 
to  the  transaction  and  cannot  rely  upon  his  own  testimony 
alone.^ 

453.  iMPORTumNG  Donor — Persuasion. — A  donee 
does  not  lose  his  right  to  retain  a  gift  merely  because  he 
importuned  the  donor  to  make  it,  nor  because  any  one 
else  importuned  such  donor  to  make  it.  Mere  entreaties 
or  persuasions,  even  though  such  entreaties  or  jDcrsuasions 
bring  about  the  gift,  do  not  avoid  it.  Any  one  has  a  legal 
right  to  entreat  another  for  a  gift  without  losing  his  right 
to  it  after  it  is  made.  To  render  a  gift  made  under  such 
circumstances  void,  the  entreaties  or  persuasions  must 
advance  so  far  as  to  become  the  exercise  of  an  undue 
influence — such  as  renders  the  donor  a  mere  agent  in 

^  Miskev's  Appeal,  107  Pa.  St.  611;  Russell's  Appeal,  25  P.  F.  Smitli,  289; 
Wollaston  v.  Tribe,  L.  R.  9  Eq.  44 ;  Coutts  v.  Ackworth,  L.  R.  8  Eq.  558 ;  Hall  v. 
Hall,  L.  R.  14  Eq.  365;  Huguenin  v.  Baseley,  14  Ves.  273;  Phillipson  v. 
Kerry,  32  Beav.  628 ;  Garnsey  v.  Mnndy,  13  Araer.  L.  Reg.  345.  See  Section 
118.  ' 

^Chalker  v.  Chalker,  5  Redf.  480;  Griffiths  v.  Robins,  3  Madd.  191 ;  Goddard 
V.  Carlisle,  9  Price,  169 ;  Nesbit  v.  Lockman,  34  N.  Y.  167 ;  Sears  v.  Shafer, 
6  N.  Y.  268. 


Fraud  and   Undue  Influence.  449 

the  hands  of  the  donee  to  do  his  will  and  biddins-.^ 
A  gift  inter  vivos  obtained  in  this  manner  is,  however, 
presumptively  void ;  and  the  donee,  in  order  to  retain  it, 
where  he  has  obtained  the  gift  by  natural  influence  he 
i^ossessed  over  the  donor,  must  affirmatively  show  that 
the  donor  could  have  formed  a  free  and  unfettered  judg- 
ment in  the  matter.^ 

454.  Burden  to  Show  Fraud  or  Undue  Influence. 
— The  burden  to  show  that  the  gift  was  procured  by  fraud 
or  undue  influence  rests  upon  the  person  who  attacks  its 
validity.  Proof  of  facts  from  wdiich  fraud  or  such  influ- 
ence results  as  an  unavoidable  inference  is  sufficient.  In 
some  cases  undue  influence  will  be  inferred  from  the 
nature  of  the  transaction  alone ;  in  others  from  the  nature 
of  the  transaction,  and  the  exercise  of  occasional  or  habit- 
ual influence.  Evidence  of  direct  influence  used  at  the 
time  the  gift  is  made  is  not  required.  It  is  very  often 
difficult  to  show  by  direct  proof  the  undue  influence,  and 
direct  evidence  of  the  actual  exercise  of  such  influence  is 
not  expected.  Oftentimes  the  means  of  keeping  the  in- 
fluence out  of  sight  are  many  and  easy  of  application, 
and  yet  the  result  may  be  clearly  seen.  The  fact  of  the 
influence  exerted  is  very  often  gathered  from  all  the  cir- 
cumstances attending  the  donor — his  health,  age,  and 
mental  condition,  how  far  he  was  dependent  upon  and 
subject  to  the  control  of  the  person  benefited,  the  oppor- 
tunity which  the  donee  had  to  exercise  his  influence,  and 

'  Beith  V.  Beith,  76  la.  601  ;  O'Neall  r.  Farr,  1  Pvich.  80 ;  Soberanes  r.  Soberanes, 
31  Pac.  Rep.  910;  Harrison's  Will,  1  B.  Mon.  351  ;  Walker  r.  Hunter,  17  Geo. 
364 ;  Newhouse  v.  Godwin,  17  Barb.  236  ;  Chandler  v.  Ferris,  1  Harr.  454 ;  Calvert 
V.  Davis,  5  Gill  &  J.  269. 

^Parfitt  r.  Lawless,  L.  R.  2  P.  &  D.  462;  S.  C.  41  L.  J.  P.  68;  27  L.  T.  215; 
21  W.  R.  200 ;  4  Moak.  687.     The  fact  that  the  donor  did  not  have  independent 
advice  is  not  alone  sufficient   to  overthrow  the   gift:   Soberanes  r.  Soberanes, 
31  Pac.  Rep.  910. 
29 


450  Gifts. 

the  disposition  of  the  donor  to  be  subjected  to  it.  But 
the  undue  influence  must  be  exercised  in  relation  to  the 
gift  made,  and  not  as  to  other  transactions,  in  order  to  in- 
validate the  gift.  Yet  if  it  is  shown  that  at  or  about  the 
time  when  the  gift  was  made  the  donor  was  in  other  im- 
jDortant  particulars  so  under  the  influence  of  the  donee, 
that,  as  to  them,  he  was  not  a  free  agent,  but  was  acting 
under  undue  influence,  the  circumstances  may  be  such  as 
fairly  to  warrant  the  conclusion,  in  the  absence  of  any  evi- 
dence bearing  directly  upon  the  acts  done  when  the  alleged 
gift  was  actually  made,  that,  in  relation  to  that  also,  the 
same  influence  was  exerted.  If  fiduciary  or  confidential 
relations  are  established  between  the  donor  and  donee, 
then  the  burden  is  upon  the  latter  to  show  that  the  gift 
was  fair  and  that  no  undue  advantage  was  taken  of  the 
former.^ 

455.  Confidential  Relations. — Certain  relations  be- 
tween the  donor  and  donee  are  deemed  to  raise  a  presump- 
tion of  such  an  undue  influence  on  the  part  of  the  donee  as  to 
avoid  the  gift,  and  the  burden  rests  upon  the  donee  to  show 
that  there  was  no  such  influence  or  no  undue  advantage 
was  taken  of  the  donor.  "  For  I  take  the  rule  to  be  this," 
said  Lord  Brougham ;  "  there  are  certain  relations  known 
to  the  law,  as  attorney,  guardian,  trustee ;  if  a  person 
standing  in  these  relations  to  client,  ward,  or  cestui  que 
trust,  takes  a  gift  or  makes  a  bargain,  the  proof  lies  upon 
him,  that  he  has  dealt  with  the  other  party,  the  client, 
Avard,  etc.,  exactly  as  a  stranger  would  have  done,  taking 

1  Woodbury  v.  Woodbury,  141  Ma^s.  829  ;  Chalker  v.  Chalker,  5  Eedf.  480  ;  Boyd 
V.  Boyd,  66  Pa.  St.  28.3 ;  Tenbrook  v.  Brown,  17  Ind.  410 ;  Drake's  Appeal,  45 
Conn.  9;  Delafield  v.  Parish.  25  N.  Y.  96;  Se:irs  r.  Shafer,  6  K  Y.  268;  Tyler 
V.  Gardiner,  35  N.  Y.  559 ;  Howe  v.  Howe,  99  Mass.  88 ;  Boyse  v.  Eossborough, 
G  H.  L.  Cas.  2;  Ehodes  v.  Bate,  L.  E.  1  Ch.  252;  Mitchell  v.  Homfray,  8  Q.  B. 
Div.  588 ;  In  re  Welsh,  1  Eedf.  238  :  Todd  v.  Grove,  33  Md.  188;  Wilson's  Appeal, 
99  Pa.  St.  545;  Diincombe  v.  Eichards,  46  Mich.  166. 


Fraud  and   Undue  Influence.  451 

no  advantage  of  liis  influence  or  knowledge,  putting  the 
other  party  on  his  guard,  bringing  everything  to  his 
knowledge  which  he  himself  knew.  In  short,  the  rule 
rightly  considered  is,  that  the  person  standing  in  such 
relation  must,  before  he  can  take  a  gift,  or  even  enter  into 
a  transaction,  place  himself  in  exactly  the  same  position  as 
a  stranger  would  have  been  in,  so  that  he  may  gain  no 
advantage  whatever  from  his  relation  to  the  other  party, 
beyond  what  may  be  the  natural  and  unavoidable  con- 
sequence of  kindness  arising  out  of  that  relation."^ 
The  grounds  upon  which  a  gift  between  persons  holding 
confidential  relations  are  held  prima  facie  void  is  that  of 
public  policy,  or,  as  it  is  otherwise  expressed,  of  public 
utility.  The  relief  granted  in  such  cases  rests  upon  gen- 
eral principles  applicable  to  all  relations  in  which  domin- 
ion is  exercised  by  one  person  over  another.^  In  the  case 
of  a  gift  between  [)ersons  sustaining  confidential  relations 
to  each  other,  the  courts  usually  require  the  donee  to  show 
that  the  donor  liad  independent  and  proper  advice  before 
the  gift  was  made,  especially  where  the  donor  is  old  and 
feeble.'^ 

456.  Principal  and  Agent — Partners. — ^In  the  case 
of  a  guardian  and  ward,  trustee  and  beneficiary,  and  the 
like,  the  confidential  relations  between  them  implies  control 
or  dominion  by  one  over  the  will  of  another  ;  in  which 
cases  dealings  between  them  are  subject  to  an  adverse  pre- 
sumption, because  of  the  opportunities  and  temptations 

1  Hunter  r.  Atkins,  3  My.  &  K.  113;  Miskey's  Appeal,  107  Pa.  St.  611  ;  Garvin 
V.  Williams,  44  Mo.  4G5  ;  Yosti  v.  Longhran,  49  Mo.  594;  Hall  v.  Knappenberger, 
97  Mo.  509  ;  Haydock  v.  Haydock,  34  N.  J.  Eq.  570 ;  Sears  v.  Shafer,  1  Barb.  408  ; 
affirmed  6  N.  Y.  2G8 ;  Kersten  v.  Tane,  22  Or.  Ch.  517. 

2  .\shton  V.  Thompson,  32  Minn.  25. 

^Beeman  v.  Knapp,  13  Gr.  Ch.  398;  Sharp  v.  Leach,  31  Beav.  404;  Wood- 
bury i,.  Woodlmry,  141  Mass.  329.  See  Parker  r.  Parker,  45  N.  J.  Eq.  224; 
Stewart's  Estate,  137  Pa.  St.  175;  Duncombe  v.  Richards,  46  Mich.  166. 


452  Gifts. 

which  such  a  relationship  affords  for  the  improper  exer- 
cise of  the  dominion  thus  acquired.     But  in  the  case  of 
principal  and   agent,  and  partners,  such  a  presumption 
does  not  arise,  although  their  dealings  are  closely  scruti- 
nized because  of  the  opportunities  and  temptations  which 
those  relationships  afford  for  the  abuse  of  trust  and  confi- 
dence.    In  the  case  of  guardian  and  ward,  and  the  like, 
confidence  as  well  as  control  may,  and  usually  does,  exist ; 
but  in  the  case  of  principal  and  agent,  confidence  alone 
exists,  while  dominion  is  not  implied.     It  cannot,  there- 
fore, be  said  that  an  agent,  who  is  the  mere  creature  of 
the  princij^al  and  whose  appointment  is  revocable  at  the 
latter's  discretion,  has  the  same  opportunity  to  dominate 
his  principal  as  the  guardian,  whose  relationship  is  con- 
ferred by  a  will  other  than  the.  ward's,  who  stands  in  loco 
pareritis  to  a  person  under  disability,  or  just  removed  from 
it,  and  where  appointment  is  for  a  term   fixed  by  law. 
Dominion  is  the  characteristic  feature  of  the  one  relation- 
ship ;  trust,  of  the  other.    In  a  matter  of  dealing  between 
the  agent  and  the  principal  with  respect  to  the  property 
the  subject  of  the  agency,  or  in  respect  to  the  matter  in 
which  the  agent  is  emjDloyed,  such  agent  must  show,  to  the 
satisfaction  of  the  court,  that  he  gave  his  principal  the 
same  advice  in  the  matter  as  an  independent  and  disin- 
terested adviser  would  have  done.    He  must  show  that  he 
2)ut  his  principal  in  possession  of  all  the  facts ;  for  the 
transaction  is  presumptively  fraudulent.     But  not  so  in 
the  case  of  a  gift.     He  is  not  an  agent  for  the  purpose  of 
taking  a  gift,  or  for  dealing  with  the  subject-matter  of  the 
agency  in  that  manner.     In  his  capacity  as  agent  he  ex- 
ercises no  dominion  over  his  principal.     Therefore  a  gift 
by  a  principal  to  his  agent,  who  has  ever  been  his  confi- 
dential adviser  for  many  years,  is  valid,  unless  the  party 
who  seeks  to  set  it  aside  can  show  that  some  advantage 


Fraud  and   Undue  Influence.^  453 

was  taken  of  the  agent  of  the  relation  in  which  he  stood 
to  the  donor.  And  in  determining  whether  the  gift 
was  void,  after  both  parties  have  introduced  such  evi- 
dence as  is  admissible,  the  whole  field  must  be  sur- 
veyed, and  the  true  nature  and  character  of  the 
transaction  considered/  It  may,  therefore,  be  stated 
as  a  rule  of  universal  application,  that  mere  proof  on 
the  part  of  the  party  attacking  the  validity  of  a  gift  on 
the  ground  of  fraud,  that  the  donee  was  the  agent  of  the 
donor,  even  though  the  subject-matter  of  the  gift  was  the 
subject-matter  of  the  agency,  does  not  raise  a  presumption 
that  the  gift  was  fraudulent.  Something  more  must  be 
shown  before  the  gift  will  be  overturned.^  In  such  an 
instance  it  is  not  necessary  to  shoAV  that  the  principal  had 
independent  advice.^  If  the  proof  show  that  the  donor 
knew  what  he  was  doing,  the  value  of  the  thing  donated, 
the  exact  situation  of  the  property,  the  effect  it  would 
have  on  his  own  estate,  the  condition  in  which  he  would 
be  left ;  if  the  gift  is  by  deed  or  a  written  instrument, 
that  it  was  read  over  and  explained  to  him  before  execu- 
tion, its  contents  being  fully  understood  and  compre- 
hended— that  is  sufiicient  to  uphold  the  gift,  and  to  repel 
the  presumption  of  fraud  arising  from  proof  of  the  rela- 
tion of  the  parties  which  a  few  cases  still  adhere  to.^ 

457.  Gift  by  Client  to  His  Attorney. — Transac- 
tions between  an  attorney  and  his  client  do  not  stand,  in 
the  eye  of  the  law,  precisely  on  the  same  footing  with 

lUhlich  V.  Muhlke,  61  111.  499. 

2  Ralston  v.  Turpin,  25  Fed.  Rep.  7 ;  McCormick  v.  Malin,  5  Blackf.  509  ;  Harris 
V.  Tremenheere,  15  Yes.  34 ;  Huguenin  v.  Basely,  74  Yes.  273 ;  Pressley  r.  Kemp, 
16  S.  C.  334;  S.  G.  42  Am.  Rep.  635;  Smith  v.  Kay,  7  H.  L.  Cas.  751. 

'  Ralston  v.  Turpin,  supra. 

*  Decker  v.  Waterman,  67  Barb.  460.  See  Comstock  v.  Comstock,  57  Barb.  453  ; 
Piatt  V.  Piatt,  2  T.  &  C.  29 ;  Beeman  v.  Knapp,  13  Gr.  Ch.  39S ;  Parris  r.  Cobb, 
5  Rich.  Eq.  450. 


454  Gifts. 

those  which  take  place  between  men  not  connected  by  any 
confidential  relation.  The  attitude  of  an  attorney  fre- 
quently enables  him  to  take  an  undue  advantage  of  his 
client,  and  courts  for  this  reason  frequently  overlook 
transactions  between  them.  But  to  justify  interference 
on  the  part  of  the  court,  it  must  appear  that  the  attorney 
excited  fear  in  his  client,  or  exerted  his  influence  to  ob- 
tain an  exorbitant  reward,  or  that  the  transaction  was 
tainted  by  fraud,  misrepresentation,  or  circumvention. 
But  wdien  the  relationshij)  of  attorney  and  client  is  dis- 
solved, then  they  stand  upon  the  same  footing  as  if  such 
relationship  had  never  existed ;  yet  if  it  be  shown  that 
the  attorney,  by  reason  of  such  former  relationship,  still 
had  an  undue  influence  over  his  former  client,  that  fact 
may  be  well  considered  in  determining  the  validity  of  the 
gift.^  In  an  Irish  case,  w^here  the  donee  was  a  solicitor 
of  the  donor  and  claimed  that  his  client  had  made  a  gift 
mortis  causa  of  a  sum  of  money  then  in  his  hands,  the 
court  declined  to  allow  the  gift,  saying  :  "  This  court  will 
not  jDcrmit  a  solicitor,  having  money  of  his  client  in  his 
hands,  to  come  out  of  a  room  in  which  his  client  was — 
least  of  all  out  of  a  sick-room  where  his  client  was  at  the 
j)oint  of  death,  and  where  he  was  alone  with  him — and 
say  that  the  client  allowed  him  to  retain  for  his  own  pur- 
poses a  part  of  the  money  in  his  hands.  There  would  be 
no  safety  in  the  ordinary  transactions  of  life  if  he  were 
allowed  to  do  so  ;  and  there  is  no  class  upon  whom  it 
would  press  more  heavily  than  the  solicitors  themselves, 
for  instead  of  families  reposing  confidence  in  them,  as 
they  do  now,  they  w^ould  be  obliged  to  shut  their  doors 
against  them,  and  see  that  they  were  not  allowed  access 
to  their  clients  except  in  the  presence  of  witnesses  who 
would  prevent  anything  of  the  kind  taking  place.     But 

'  Bibb  I'.  Smith,  1  Dana,  580. 


Fraud  and   Undue  Influence.  455 

the  law  does  not  allow  such  transactions  to  stand  ;  it  says 
to  the  solicitor,  if  you  wish  to  take  a  gift  from  your  client, 
you  must  call  in  a  third  person,  and  then  if  the  client 
will  confer  a  benefit  upon  you,  and  that  he  is  fully  ac- 
quainted with  the  nature  of  the  act  he  is  doing,  and  is 
determined  to  do  it,  there  is  nothing  to  be  said  against  it. 
But  the  court  cannot  allow  payment  of  a  sum  of  money 
to  be  enforced  against  the  assets  of  the  client,  depending 
upon  a  conversation  between  him  and  his  solicitor,  in  the 
absence  of  third  persons,  when  the  client  was  in  ex- 
tremis.''^ ^  "  A  client,  for  example,"  said  Lord  Brougham, 
"  may  naturally  entertain  a  kindly  feeling  toward  an 
attorney  or  solicitor  by  whose  assistance  he  has  long  bene- 
fited; and  he  may  fairly  and  wisely  desire  to  benefit  him 
by  a  gift,  or  without  such  an  intention  being  the  pre- 
dominating motive,  he  may  wish  to  give  him  the  advan- 
tage of  a  sale  or  a  lease.  No  law  that  is  tolerable  among 
civilized  men,  men  who  love  the  benefits  of  civility  with- 
out the  evils  of  excessive  refinement  and  overdone  sub- 
tlety, can  ever  forbid  such  a  transaction,  provided  the 
client  be  of  mature  age  and  of  sound  mind,  and  there  be 
nothing  to  show  that  deception  was  practiced,  or  that  the 
attorney  or  solicitor  availed  himself  of  his  situation  to 
withhold  anv  knowleds-e,  or  exercise  anv  influence  hurtful 
to  others  and  advantageous  to  himself  In  a  word,  stand- 
ing in  the  relation  in  which  he  stands  to  the  other  party, 
the  proof  lies  upon  him  (whereas,  in  the  case  of  a  stranger 
it  would  be  on  those  who  opposed  him)  to  show  tliat  he 
has  placed  himself  in  the  position  of  a  stranger,  that  he 
has  cut  ofi*,  as  it  were,  the  connection  which  bound  him  to 
the  party  giving  or  contracting,  and   that  nothing    has 

iWnlsh  V.  Studdart,  6  Irish  Eq.  161  ;  S.  C.  4  Stig.  Dec.  (Ir.)  159;  2  Cn.  & 
Low.  (Ir.)  423.  It  has  been  said  that  it  is  almost  impossible  for  a  gift  between 
attorney  and  client  to  stand  :  Hatch  v.  Hatch,  9  Ves.  292,  296  ;  Watt  v.  Grove,  2 
Sch.  &  Lef.  492,  503  ;  Griffiihs  v.  Eobins,  3  Madd.  191. 


456  Gifts. 

liai^pened,  wliicli  might  not  have  happened,  had  no  such 
connection  subsisted."  ^ 

458.  Gift  to  Clergyman. — The  gift  of  a  donor  to  his 
spiritual  adviser  is  regarded  with  some  degree  of  sus- 
j^iciou,  especially  if  made  as  a  mortis  causa.  "  When  a 
clergyman,"  said  Lord  Sugden,  "  attends  upon  a  person 
in  his  last  moments,  and  sets  up  a  gift  from  the  dying- 
man  to  himself,  the  evidence  of  the  transaction  ought  to 
be  i^erfectly  free  from  all  suspicion,  and  such  as  to  leave 
no  reasonable  doubt  in  the  mind  of  the  court  as  to  its 
truth.  A  death-bed  is  not  the  fit  place,  nor  the  projDer 
time,  at  which  a  clergyman  of  any  persuasion  should  look 
to  his  own  personal  interest,  or  seek  to  obtain  the  prop- 
erty of  the  dying  man.  On  such  an  occasion,  if  a  man 
has  a  testamentary  intention,  and  the  time  allows,  proper 
advice  should  be  obtained,  some  professional  person  should 
be  sent  for,  and  disinterested  witnesses  called  in ;  all  due 
solemnities  should  attend  the  disposition  of  the  property. 
Advantage  ought  never  to  be  taken  of  a  man's  last 
moments,  in  order  to  obtain  dispositions  of  his  property, 
in  favor  of  persons  not  connected  with  him  by  the  ties 
of  blood,  and  I  shall  always  require  strong  evidence,  more 
especially  in  the  case  of  a  clergyman,  before  I  support  a 
gift  made  in  extremis."  ^     In  such  an  instance  the  burden 

1  Hunter  v.  Atkins,  3  My.  &  K.  113  ;  Gibson  v.  Jeyes,  6  Ves.  277  ;  Wright  v. 
Proud,  13  Ves.  138  ;  Harris  v.  Tremenheere,  15  Ves.  40.  A  gift  to  his  attorney 
of  a  part  of  the  property  in  litigation  is  void  :  Berrien  v.  M'Lane,  Hoff.  Ch.  421 ; 
Howell  V.  Eansom,  1  N.  Y.  Leg.  Obs.  11  ;  Marshall  v.  Dossett,  20  S.  W.  Eep. 
810;  Anonymous,  16  Abb.  Pr.  428.  See  generally  Eose  v.  Mynatt,  7  Yerg.  30; 
Planters'  Bank  v.  Hornberger,  4  Coldw.  531 ;  Starr  v.  Vanderheyden,  9  Johns. 
2o3 ;  St.  Leger's  Appeal,  34  Conn.  434  ;  In  re  Smith,  95  N.  Y.  51G.  Even  if  it  is 
shown  that  the  gift  was  made  after  the  relation  of  attorney  and  client  ceased, 
it  must  be  shown  that  the  client  made  the  gift,  or  confirmed  one  previously 
made,  with  a  full  knowledge  of  his  rights :  Tyars  v.  Alsop,  61  L.  T.  8  ;  S.  C.  37 
W.  E.  339 ;  53  J.  P.  212  ;  5  T.  L.  E.  242  ;  affirming  59  L.  T.  367  ;  S.  C.  36  W.  R. 
919. 

=>  Thompson  v.  Heffernan,  4  Sug.  Dec.  (Ir.)  285  ;  Norton  v.  Eelly,  2  Eden,  286. 


I 


Fraud  and   Undue  Influence.  457 

of  showing  that  the  gift  was  fair  is  upon  the  donee,  es- 
pecially if  he  in  any  Avay  acted  as  the  agent  of  the 
donor.^ 

459.  Physician  axd  Patient. — Nearly  the  same  rule 
seems  to  prevail  with  regard  to  a  gift  from  a  patient  to 
his  medical  attendant  that  prevails  between  client  and 
attorney.  Thus,  where  a  surgeon,  who  had  attended  a 
poor  shoemaker  for  years  and  received  some  comj^ensation 
for  his  services,  on  the  latter's  daughter  being  about  to 
marry  a  nobleman,  took  a  note  for  much  more  than  his 
usual  charges  amounted  to,  presumably  because  of  the 
social  changes  of  the  shoemaker,  brought  about  by  his 
daughter's  marriage,  the  court  declined  to  allow  a  recovery 
for  any  more  than  was  due  by  the  old  scale  of  fees,  because 
of  the  confidential  relations  between  them."^  So  in  a  re- 
cent case  it  was  held  that,  although  there  was  no  rule  of 
law  which  forbids  a  man  bequeathing  his  property  to  his 

'  Corson's  Estate,  137  Pa.  St.  160  ;  Marx  i-.  McGlynn,  4  Kedf.  455  ;  Merrill  v. 
Rolston,  5  Kedf.  220,  235 ;  Drake's  Appeal,  45  Conn.  9 ;  Kersien  v.  Tane,  22  Gr. 
Ch.  547.  In  case  of  a  will,  when  it  was  shown  that  the  legatee  was  a  Roman 
Catholic  priest,  that  he  had  resided  with  the  testatrix  and  her  hu>band  nianv 
years  as  chaplain,  and  for  a  part  of  the  time  as  confessor,  being  confessor  at  the 
time  the  will  was  made  ;  but  there  was  no  evidence  that  he  had  interfered  in  the 
making  of  the  will,  or  that  he  had  procured  the  gift  from  the  donor  to  himself,  or 
that  he  had  brought  such  gift  about  by  coercion  or  dominion  exercised  over  the  tes- 
tatrix against  her  will,  or  by  importunity  not  to  be  resisted  ;  and  it  was  not  shown 
that  even  in  the  common  aflairs  of  life,  in  business,  or  in  anything  else,  the  testa- 
trix was  under  his  dominion  or  influence ;  it  was  held  that  there  was  no  evidence 
to  go  to  the  jury  on  an  issue  of  undue  influence:  Parfitt  v.  Lawless,  L.  R.  2  P.  iS: 
D.  462;  S.  C.  41  L.  J.  P.  68 ;  27  L  T.  215  ;  21  W.  R.  200  ;  4  Moak.  GS7. 

2  Billage  v.  Southee,  9  Hare,  534;  S.  C.  16  Jur.  188  ;  Ahearne  v.  Ilogan,  1  Drury 
(Irish),  310.  See  Pratt  v.  P>arker,  1  Sim.  1  ;  S.  C  4  Russ.  507 ;  Crispell  v.  Dubois, 
4  Barb.  393 ;  Mitchell  v.  Homfrny,  8  L.  R.  Q.  B.  Div.  587 ;  S.  C.  50  L.  J.  Q.  B. 
Div.  460 ;  45  L.  T.  (N.  S.)  694;  29  W.  R.  558  ;  Blaikie  v.  Clarke,  22  L.  J.  Ch.  377  ; 
Whitehorn  v.  Hines,  1  Munf.  559.  In  Missouri  it  was  held  that  merely  proving 
that  the  donor  was  a  m:in  afflicted  with  a  chronic  disease,  and  the  purchaser  was 
his  family  physician,  did  not  warrant  an  inference  of  fraud,  especially  where  there 
were  no  attending  circumstances  to  corroborate  such  inference  :  Doggett  i.  Lane, 
12  Mo.  215. 


458  Gifts. 

medical  attendant,  yet  it  is  not  a  favorable  circumstance 
for  one  in  such  a  confidential  position,  with  respect  to  a 
patient  laboring  under  severe  disease,  to  take  a  large 
benefit  under  such  patient's  will,  more  particularly  if  it 
be  executed  in  secrecy  and  the  whole  transaction  assumes 
the  character  of  a  clandestine  proceeding.  In  such  a  case 
the  burden  lies  very  heavily  upon  the  person  benefited  to 
maintain  the  validity  of  the  will.^  But,  on  the  contrary, 
a  gift  of  150,000  worth  of  jDroperty  by  a  patient  to  his 
physician,  by  deed,  was  upheld,  and  the  burden  ruled  to 
be  on  those  attacking  the  validity  of  the  gift  to  show  that 
it  was  brought  about  by  undue  influence.^ 

460.  Ante-Nuptial  Agreements. — Gifts  between 
persons  under  an  engagement  of  marriage  are  closely 
scrutinized  when  a  charge  of  fraud  or  undue  influence  is 
made,  such  persons  occupying  confidential  relations. 
When  such  gifts  or  contracts  are  drawn  in  question,  every 
presumption  is  against  their  validity,  and  the  burden  of 
proof  is  cast  upon  the  man,  in  order  to  ujDhold  and  enforce 
them.^ 

1  Ashwell  V.  Lomi,  L.  R.  2  P.  &  D.  477 ;  S.  C.  4  Moak.  700.  A  deed  of  gift 
set  aside  :  Gibson  v.  Russell,  2  Y.  &  C.  N.  C.  ]  04.  A  secret  agreement  to  pay  |125,000 
for  medical  services  set  aside  :  Dent  v.  Bennett,  4  M)'.  &  Cr.  269.  An  annuity  of 
|-')00  for  his  life,  in  consideration  that  tlie  ship  surgeon  would  live  with  him  and 
take  care  of  him,  from  an  apoplectic  patient,  set  aside :  Popham  r.  Brooke,  5  Russ.  8. 
A  dentist  holding  a  draft  for  §1,300,  in  consideratinn  tiiat  he  would  take  care  of 
an  aged  man's  teeth,  held  void  and  ordered  delivei  ed  up :  Allen  v.  DaviS;  4  De  G. 
&  S.  133.  An  aged,  feeble,  and  nearly  deaf  patient,  giving  his  entire  estate  to  a 
physician  who  lived  with  and  took  care  of  him,  gift  set  aside:  Cadwallader  v. 
West.  See,  generally,  where  such  gifts  are  presumptively  void:  Rhodes  v.  Bate, 
35  L.  J.  Ch.  207  ;  Greenville  v.  Tyler,  7  P.  C.  320. 

2  Audenreid's  Appeal,  89  Pa.  St.  114;  S.  C.  33  Amer.  Rep.  731. 

3  Pierce  v.  Pierce,  71  N.  Y.  154;  S.  C.  27  Amer.  Rep.  22  ;  Kline's  Estate,  64 
Pa.  St.  122;  Tarbell  v.  Tarbell,  10  Allen.  278;  Fay  v.  Rickman,  1  Busbee's  Eq. 
278;  Woodward  r. 'Woodward,  5  Sneed,  49 ;  Pager.  Hurne,  11  Beav.  227;  Cob- 
bett  V.  Brock,  20  Beav.  524;  Coulson  v.  Allison,  2  De  Gex,  F.  &  J.  521  ;  James 
I'.  Holmes,  31  L.  J.  (N.  S.)  Ch.  567;  Kline  v.  Kline,  57  Pa.  St.  120;  Wollaston 
V.  Tribe,  L.  R.  9  Eq.  44 ;  Rockafellow  v.  Newcomb,  57  111.  186. 


Fraud  and   Undue  Influence.  459 

461.  Father  to  Son. — There  is  no  j^resumption  that 
a  gift  from  a  father  to  a  son  has  been  2:)rocured  by  unfoir 
dealing/  unless  it  is  shown  that  the  gift  was  an  unusual 
one  from  an  aged  and  feeble  man  to  a  son  who  has  been 
his  confidential  adviser  or  manager.^ 

462.  Sox  TO  Father. — The  influence  of  a  father  may- 
be so  great  over  a  son,  even  after  he  has  married  and  left 
the  parental  roof,  as  to  render  his  gift  to  the  parent 
voidable,  and  to  cast  upon  the  donee  the  burden  of 
showing  that  it  was  fully  understood  and  devoid  of  undue 
influence.  This  was  held  especially  true  where  the  son 
made  no  provision  for  his  own  family,  the  intimacy  of 
the  father  and  son  being  unusually  confidential,  and  the 
son  being  addicted  to  the  use  of  intoxicating  liquors.^ 

463.  Brothers  axd  Sisters. — The  mere  relation  of 
brother  and  sister  does  not  impose  that  confidence  Avliich 
will  avoid  a  gift  from  one  to  the  other  unless  it  is  shown 
to  be  fair.  If  there  is  nothing  in  the  circumstances 
showing  dependence  and  trust  on  the  one  hand,  and  the 
assumed  duty  of  protection  and  counsel  on  the  other, 
equity  will  not  compel  a  brother  to  treat  a  sister  with 
more  tenderness  than  any  other  woman.  Such  things 
belong  to  the  imperfect  duties,  which  even  a  court  of 
equity  cannot  enforce.  Yet  if  the  relation  has  assumed 
a  confidential  character,  they  must  act  with  the  utmost 
good  faith,  especially  in  dealing  with  regard  to  inherit- 
ances or  distributive  shares  of  estates  coming  to  them 
jointly.* 

'Tenbrook  v.  Brown,  17  Ind.  410. 

^  Beeman  v.  Knapp,  13  Gr.  Ch.  398  ;  Stewart's  Estate,  137  Pa.  St.  ITo. 

niiskey's  Appeal,  107  Pa.  St.  611 ;  Beith  v.  Beitii,  76  la.  601. 

*  Million  V.  Taylor,  38  Ark.  428 ;  Dunn  v.  Chambers,  4  Barb.  376 ;  Dunnage 
!•.  White,  1  Swanst  138;  Stewart  v.  Stewarf,  7  J.  J.  Mar.  183;  Boney  v.  llollings- 
worth,  23  Ala.  690 ;  Gillespie  t;.  Uolland,  40  Ark.  23. 


460 

464.  Gift  to  Mistkess. — If  lie  sees  fit,  a  donor  may 
make  a  valid  gift  to  his  mistress.  In  such  instances, 
however,  the  law  looks  suspiciously  for  coercion  or  undue 
influence ;  but  the  burden  is  not  cast  upon  the  donee  to 
show  that  neither  of  them  was  used,  nor  to  show  that 
the  donor  was  at  the  time  a  person  of  sufficient  cajDacity 
to  make  the  gift.^  The  influence  exercised  by  a  mistress 
donee  over  the  donor  to  procure  the  gift  may  be  illegiti- 
mate and  undue ;  '^  but  such  donee,  by  mere  proof  of  the 
gift,  is  not  called  upon  to  show  that  it  was  not  undue  or 
illegitimate.^ 

465.  Gift  of  Iistebkiate. — The  gift  of  an  inebriate, 
made  when  he  is  in  a  condition  to  know  the  effect  of  his 
act,  is  valid,  especially  if  the  gift  is  one  proper  for  him  to 
make ;  ^  but  if  it  is  not  sliown  that  he  was  fully  aware  of 
the  consequences  of  his  act,  the  gift  will  be  set  aside.^ 
So,  if  it  is  shown  that  the  donor  had  periods  of  sobriety 
in  which  he  was  able  to  attend  to  business,  and  it  is  not 
shown  that  he  was  intoxicated  at  the  time  the  gift  is 
made,  it  is  not  sufficient  to  avoid  the  transaction,  although 
it  is  shown  that  the  donor  is  a  hard  drinker,  and  that  the 
habits  of  intoxication  had  affected  his  health  and  fre- 
quently rendered  him  unfit  for  business.^ 

466.  Wakd  to  Guardian — Son  to  Parent. — Courts 
have  always  looked  with  extreme  jealousy  upon  the  gift 
of  a  ward  to  his  guardian  on  the  latter's  becoming  of  age. 

^Inre  McGnire,  1  Tucker,  19G. 

^Kessinger  v.  Kessinger,  37  Ind.  341;  Dean  v.  Negley,  41  Pa.  St.  312;  S.  C. 
80  Amer.  Dec.  620;  Delafield  v.  Parish,  25  N.  Y.  9. 

*  Monroe  v.  Barclay,  17  Oliio  St.  302.  As  between  the  mistress  and  one  claim- 
ing as  heir  or  donee  from  her  paramour,  courts  will  not  be  overzealous  ia  her 
favor :  Ralston  v.  Turpin,  25  Fed.  Rep.  7. 

*Corrigan  v.  Corrigan,  15  Gr.  Ch.  341. 

^  Miskey's  Appeal,  107  Pa.  St.  611 ;  Chapleau  v.  Chapleau,  1  Leg.  News,  473. 

^  Ralston  v.  Turpin,  25  Fed.  Rep.  7. 


Fraud  and    Undue  Injluence.  461 

Not  only  is  the  rule  applied  to  that  period  of  time,  but  at 
any  time  previous  thereto,  and  at  any  time  thereafter  so 
long  as  it  may  be  sufficient  to  insure  complete  emancipa- 
tion on  the  part  of  the  ward,  and  afford  him  an  independ- 
ent and  unbiased  opportunity  to  investigate  for  himself 
and  see  that  everything  is  correct.^     "  The  confidential 
relation  of  parent  and  child,  and  the  fiduciary  relation  of 
guardian  and  ward,  are  among  those  in  which  such  relief 
is  frequently  granted.     Equity  looks  with  special  jealousy 
upon   donations  from  a  child   to  a  parent  when   made 
recently  after  the  child  becomes  of  age,  or  while  he  is 
under  the  constant  and  immediate  influence  of  the  parent 
(as,  for  instance,  residing  with  him) ,  or  while  his  property 
is  in  the  parent's  possession  or  control."     Donations  from 
a  ward  to  his  guardian  are  regarded  with  still  greater 
jealousy  where  the  circumstances  are  such  as  to  give  the 
guardian  an  ascendency  over  the  ward,  for  here  the  natu- 
ral and  mutual  ties  and  obligations  between  parent  and 
child  are  wanting,  and  the  position  of  the  guardian  is  fidu- 
ciary.^   Whether  the  donation  be  from  a  child  to  a  parent 
or  by  a  ward  to  his  guardian,  if  the  donor  is  so  placed  as 
to  be  subject  to  the  control  or  influence  of  the  donee,  the 
onus  is  on  the  parent  or  guardian  (as  the  case  may  be)  to 
show  that  '  the  transaction  is  righteous,'  ^     In  such  cases 
the  undue  influence  is,  on  grounds  of  public  policy,  prima 
facie  presumed  from  the  relations  subsisting  between  the 

1  Garvin  v.  Williams,  44  Mo.  465;  In  re  Van  Hornc,  7  Paige,  46;  Ilylton  r. 
Hylton,  2  Ves.  Sr.  547;  Hatch  v.  Hatch,  9  Ves.  292;  lluguenin  v.  Baseler,  14  Yes. 
299;  Wood  v.  Downes,  18  Ves.  127;  Gale  v.  Wells,  12  Barb.  84;  Meek  r.  Perry, 
36  Miss.  190;  Greenfield's  Estate,  2  Harris  (Pa.),  489;  Ashton  r.  Thompson, 
32  Minn.  25. 

2  Citing  Wright  v.  Vanderplank,  8  De  Gex,  M.  &  G.  133 ;  Baker  r.  Bradley, 
7  De  Gex,  M.  &  G.  597  ;  Bergen  v.  Udall,  31  Barb.  9 ;  Taylor  v.  Taylor,  8  How. 
183. 

'Citing  Hylton  v.  Hylton,  2  Ves.  Sr.  547;  Hatch  r.  Hatch,  9  Ves.  292-  Fish  r. 
Miller,  Hoff.  Ch.  267. 
*  Citing  Gibson  v.  Jeyes,  6  Ves.  266 ;  Hoghton  v.  Hoghton,  15  Beav.  278. 


462  Gifts. 

parties.^  Substantially  the  same  rule  is  applied  to  tlie 
case  of  an  ex-guardian,  where,  notwithstanding  the  ter- 
mination of  the  formal  fiduciary  relation  between  him  and 
his  ward,  he  still  retains  his  dominion  in  fact  and  his 
position  of  influence  as  respects  the  ward  or  his  property. 
This  is  especially  true  where  the  donations  called  in 
question  are  made  while  (even  after  his  majority)  the 
ward  continues  to  reside  with  the  ex-guardian,  or  the  ex- 
guardian  continues  to  retain  possession  or  control  of  the 
ward's  proi^erty.^  In  all  these  cases  where  the  law  infers 
from  the  relations  of  the  parties  the  probability  of  undue 
influence  on  the  part  of  the  party  having  dominion  or  as- 
cendency over  another,  it  requires  that  the  influence  in 
fact  exercised  shall  be  exerted  for  the  benefit  of  the  person 
subject  to  it,  and  not  for  the  benefit  of  the  party  posses- 
sing it,  otherwise  the  donations  will  be  promptly  set 
aside." ' 

467.  Wife  to  Husbaxd. — Courts  will  closely  scruti- 
nize gifts  from  a  wife  to  her  husband,  and  will  promptly 
set  them  aside,  whenever  there  is  good  reason  to  believe 
that  they  were  procured  by  the  improper  exertion  of  that 
influence  which  the  relation  of  the  parties  to  each  other 
j)uts  in  the  power  of  the  husband.  In  fact,  the  transac- 
tion will  be  viewed  with  a  jealous  eye,  on  account  of  the 
peculiar  facilities  enjoyed  by  the  husband  for  the  exercise 
of  imjDroper  influence.     Still  his  undue  influence  is  not 

'Citing  Archer  v.  Hudson,  7  Beav.  551  ;  Hjlton  v.  Hylton,  supra;  Hatch  v. 
Hatch,  supra;  Williams  v.  Powell,  1  Ired.  Eq.  460;  Ciiambers  v.  Crabbe,  34 
Eeav.  457  ;  Garvin  v.  Williams,  44  Mo.  465 ;  Todd  v.  Grove,  33  Md.  188  ;  Berdoe 
V.  Dawson,  34  Beav.  603. 

^Citing  Hylton  v.  Hylton,  supra;  Hatch  v.  Hatch,  supra;  Pierse  v.  Waring,  1 
P.  Wms.  121  (note). 

^  Ashton  V.  Thompson,  32  Minn  25.  Citing  Hoghton  v.  Hoghton,  supra; 
and  Cooke  v.  Lamotte,  15  Beav.  234 ;  Taylor  v.  Johnston,  L.  R.  19  Ch.  Div.  403; 
S.  C.  51  L.  J.  Ch.  Div.  879 ;  46  L.  T.  N.  "s.  219 ;  30  W.  R.  508. 


Fraud  and   Undue  Influence.  4G3 

to  be  presumed  from  their  mere  relationship  ;  it  must  he 
shown,  either  by  direct  proof  or  by  circumstances  from 
which  it  may  be  fairly  inferred.  When  such  a  gift  is 
drawn  in  question,  it  is  not  unreasonable  to  suppose  that 
he  occupies  a  prominent  place  in  his  wife's  affection ;  and 
this  fact  ought  to  be  cast  in  the  scale  u^^holding  the  gift 
rather  than  in  the  one  overturning  it.  This  affection  is 
ever  an  evidence  of  the  object  that  prompted  the  making 
of  the  gift — it  shows  a  reason  or  motive  for  it,  wdiich  is 
always  an  important  factor  in  the  establishment  of  a  gift.^ 
In  a  case  from  Kentucky,  on.  this  subject,  it  was  said  : 
"  It  is  not  unreasonable  or  unnatural  that  an  affectionate 
wife,  without  children,  should  make  the  husband  the 
object  of  her  bounty  in  preference  to  those  who  would  be 
her  heirs-at-law  if  the  estate  had  been  left  undis230sed  of, 
and,  therefore,  fraud  is  required  to  be  shown  before  the 
chancellor  will  disturb  the  conveyance.  Nor  will  this 
rule  be  departed  from  when  the  wife,  during  her  life,  as- 
sails the  conveyance  as  having  been  obtained  by  fraud,  or 
the  exercise  of  an  improjier  influence  by  the  husband 
over  her.  The  chancellor,  at  the  instance  of  the  wife, 
will  scrutinize  closely  the  conduct  of  the  husband  and  the 
motive  influencing  the  wife  to  part  with  her  estate,  and 
when  the  husband,  having  won  the  affections  of  his  wife, 
has  such  an  influence  over  her  as  to  make  her  entirely 
subordinate  to  his  will,  the  chancellor  will  not  mistake  to 
adjudge  that  the  parties  are  dealing  at  arm's  length,  and 
hold  the  wife  to  the  contract,  as  he  would  a  stranger. 
The  husband  will  not  be  allowed  to  take  advantage 
of  the  marital  relation,  so  as  to  invest  himself  with 
title  to  the  wife's  estate,  and  then  insist  upon  her 
ability  to  resist  his  importunities,  as  a  reason  for  making 

1  Hardy  r.  Van    Harlingen,  7   Ohio   St.  20S ;  Wilson   r.  Bull,  10  Ohio  250; 
Cain  V.  Ligon,  71  Geo.  G9J;  Sasser  i'.  Sa?ser,  73  Geo.  275. 


464 


Gifts. 


her  stand  by  the  executed  agreement,  investing  him  with 
title."  ^ 

468.  Who  May  Being  Suit  to  Set  Aside  Gift. — 
If  the  gift  is  of  personal  property,  the  executor  or  admin- 
istrator brings  the  action  to  set  it  aside ;  ^  but  if  it  is  of 
real  estate,  or  of  such  property  as  descends  to  the  heir, 
then  the  latter  must  bring  the  action,  unless  it  is  neces- 
sary to  sell  real  estate  in  order  to  pay  the  donor's  debts, 
and  then  only  where  there  is  no  other  or  an  insufficient 
amount  of  property  in  value  to  liquidate  such  debts.^ 

1  Golding  V.  Golding,  82  Ky.  51  ;  Todd  v.  Wickliffe,  18  B.  Mon.  860  ;  Kennedy 
V.  Ten  Broeck,  11  Bush.  241  ;  Scarborough  v.  Watkins,  9  B.  Mon.  540;  Black  v. 
Black,  30  N.  J.  Eq.  215;  Farmer  v.  Farmer,  39  N.  J.  Eq.  211 ;  Geibley  v.  Cox, 
1  Ves.  Sr.  517. 

2  Woodbury  v.  Woodbury,  141  Mass.  329 ;  Tyars  v.  Alsop,  61  L.  T.  8 ;  S.  C.  37 
W.  R.  339  ;  53  J.  P.  212  ;  5  T.  L.  E.  242 ;  affirming  59  L.  T.  367  ;  S.  C.  36  W.  E. 
919. 

3  Twist  V.  Bahcock,  48  Mich.  513. 

If  til  ere  is  no  fraud  or  undue  influence  alleged,  in  the  case  of  a  gift  of  person- 
alty, the  gift  must  stand,  unless  the  administrator  alleges  and  proves  that  the  gift 
is  a  mortis  causa,  and  that  there  is  a  deficiency  of  assets  to  pay  debts :  Fellows  v. 
Smith,  130  Mass.  378. 


CHAPTER  XVII. 


FRAUDULENT   CONVEYANCES. 


469.  Introduction. 

470.  Early  English  Statutes. 

471.  Statutes  Declaratory  of  the  Common 

Law. 

472.  Incorporeal  Property. 

473.  Fraudulent  Purpose. 

474.  Gift  Must  Render  Donor  Unable  to 

Pay  His  Then  Existing  Indebted- 
ness. 

475.  Subsequent  Creditors. 

476.  Subsequent  and  Sudden  Insolvency. 

477.  Gift  Made  With  Intent  to  Defraud 

Subsequent  Creditors. 

478.  Donor  Retaining  Apparent  Owner- 

ship of  Gift — Article  of  Gift. 

479.  Gift  Void  as  to  Prior  Creditors,  Re- 

gardless of  the  Amount  of  the 
Donor's  Property. 


480. 


481, 
482, 


Void  as  to  Prior,  and  Effect  on 
Subsequent  Creditors. 

Gift  Insignificant  in  Value. 

Gift  of  Property  Exempt  from 
Execution. 

483.  Husband  May  Give  His  Services 

to  His  Wife — Father's  Eman- 
cipation of  His  Minor  Child. 

484.  Donatio  Mortis  Causa. 

4S5.  Fraudulent  Gift  Binding  Between 

Donor  and  Donee. 
486.  Fraudulent  Donee  Liable  to  Do- 
nor's Creditors. 
Gift  by  Third  Person  to  Another's 

Wife  or  Child. 
Gift  by  Husband  in  Fraud  of  His 
Wife  or  Children. 


487. 


469.  Introduction. — It  is  imj^ossible  to  discuss  in 
this  treatise  the  subject  of  fraudulent  conveyances  as  fully 
and  broadly  as  the  subject  is  discussed  in  works  devoted 
exclusively  to  that  subject.  It  is  necessary  to  limit  the 
discussion,  and  simply  point  out  what  gifts  are  and  what 
are  not  void  or  voidable  as  to  the  creditors  of  the  donor, 
leaving  out  all  questions  of  practice,  and  all  questions  of 
intent  to  cheat,  hinder,  or  delay  such  creditors  or  to  se- 
cretly cover  up  and  hide  away  pro2:»erty  for  the  benefit  of 
the  donor.  The  cases  on  this  subject  with  respect  to  gifts 
are  not  altogether  in  harmony,  but  many  seeming  conflicts 
arise  from  the  peculiar  language  used  in  the  several  stat- 
utes of  the  States. 

30  ,  465 


466  Gifts. 

470.  Early  English  Statutes. — At  an  early  date  in 
England  the  practice  arose  of  debtors  transferring  their 
properties  to  their  friends  by  collusion,  in  trust  for  them- 
selves, and  then  they  would  flee  to  privileged  j^laces,  "and 
force  their  creditors  to  unfavorable  terms  of  settlement. 
To  remedy  this  evil  the  statutes  of  50  Edw.  Ill,  ch.  6, 
and  3  Hen.  VII,  ch.  4,  was  enacted,  which  rendered  void 
all  fraudulent  gifts  of  goods  and  chattels  made  in  trust 
for  the  donor,  with  the  intent  to  defraud  creditors.  For 
some  reason  these  statutes  were  unsatisfactory,  because 
Parliament  passed  the  13  Eliz.,  ch.  5,  and  the  27  Eliz., 
ch.  4.  The  former  has  been  the  basis  of  all  American 
legislation  on  this  subject,  in  many  instances  been  literally 
copied  in  its  effective  parts.  By  the  13  Eliz.,  ch.  5,  it 
was,  in  substance,  enacted  that  all  gifts  of  hereditaments, 
goods,  and  chattels,  including  conveyances  or  leases  of 
lands,  by  writing  or  otherwise,  made  with  intent  to  delay, 
hinder,  or  defraud  creditors  of  the  donor  and  others  are 
rendered  clearly  and  utterly  void  and  of  no  effect  as 
against  the  persons  so  affected,  notwithstanding  any  pre- 
tended consideration  for  the  transfer  between  the  joarties. 
Estates  and  interests  in  land  or  chattels  lawfully  conveyed 
uj^on  a  good  consideration  and  bona  fide,  with  notice  of  the 
fraud  or  collusion,  are  expressly  excepted  from  its  opera- 
tion. The  statute  of  27  Eliz.,  ch.  4,  was  made  for  the 
l^rotection  of  purchasers,  and  renders  void,  as  against 
subsequent  purchasers  of  the  same  lands,  tenements,  or 
other  hereditaments,  all  conveyances,  etc.,  made  with  the 
intention  of  defeating  them,  or  containing  a  power  of 
revocation.^ 

471.  Statutes  Declaratory  of  the  Common  Law. — 
The   statute  of  13    Eliz.  is  simply  nothing  more  than 

^The  statute  13  Eliz.,  cli.  5,  was  confirmed  by  1-1  Eliz.,  ch.  11,  sect.  10,  and  made 
perpetual  by  29  Eliz.,  ch.  5,  sects  1,  2. 


Fraudulent  Conveyances.  467 

declaratory  of  the  common  law  of  the  land.^  Lord  Coke 
considered  this  was  beyond  peradventure  from  the  use  of 
the  word  "declare,""  and  Lord  Mansfield  considered  that 
the  courts  w^ould  have  attained  the  same  result  in  the 
course  of  time.^  The  Supreme  Court  of  the  United  States, 
referring  to  this  statute  and  the  27  Eliz.,  said  that  they 
"  are  considered  as  declaratory  only  of  the  jDrinciples  of 
the  common  law."  *  It  may  be  also  remarked  that  these 
statutes  are  virtually  in  force  in  all  the  States  of  the 
Union,  excejDt  where  expressly  or  impliedly  repealed 
by  statute,  as  their  inheritance  of  the  common  law  of 
England. 

472.  Incorporeal  Property. — The  language  of  the 
early  English  statutes  applies  to  "  goods  and  chattels," 
and  after  much  discussion  it  was  finally  settled  that  they 
did  not  apply  to  transfers  of  choses  in  action,  stock,  and 
the  like.^  American  statutes,  however,  usually  contain 
language  making  them  expressly  applicable  to  all  incor- 
poreal property. 

473.  Fraudulent  Purpose. — A  fraudulent  purjDose 
on  the  part  of  the  donor,  or  upon  the  part  of  both  the 
donor  and  donee,  is  unnecessary;  for  if  such  was  the  case, 
if  the  donee  acted  in  good  faith  he  would  hold  the  property 
as  against  the  defrauded  creditors  of  the  donor,  although 
the  latter  expressly  designed  by  such  transfer  to  deprive 
them  of  the  power  to  collect  their  just  claims.  The  mere 
fact  that   the  gift  prevents  them  from  collecting  their 

^  Lord  Brougham  in  Rickards  v.  Attorney-General,  12  CI.  &  F.  44.    Sec  Barton 
V.  Vaiihevthiiysen,  11  Hare,  It-'ti,  132,  and  Ryall  v.  Rolle,  1  Atk.  ITS. 
*Co.  Lit.  7G  a,  290  b ;  3  Rep.  82  b. 

'  In  Cadogan  v.  Kcnnett,  Cowp.  432;  Ez  parte  Mayor,  34  L.  J.  Bkcy.  25. 
'Hamilton  v.  Russell,  1  Crancli,  97. 
*  2  Kent  Com.  443,  n. 


468  Gifts, 

claims  is  sufficient  to  defeat  the  gift,  for  the  law  raises  the 
presumjDtion  of  a  fraudulent  intent.^ 

474.  Gift  Must  Bender  Donor  Unable  to  Pay  His 
Then  Existing  Indebtedness. — A  gift,  in  order  to 
render  it  void  where  no  intent  to  defraud  is  involved,  must 
have  the  effect  to  hinder  and  delay  the  donor's  creditors 
in  collecting  their  claims  upon  him,  existing  at  the  time 
the  gift  was  made.  If  the  donor  has  sufficient  property 
left  to  pay  his  debts,  the  gift  is  valid ;  and  before  a  cred- 
itor can  set  aside  the  gift  he  must  show  that  there  was  not 
enough  property  to  pay  the  donor's  debts  existing  at  the 
time  the  gift  was  made.^     And  if  the  donor  acquire  prop- 

1  Freeman  v.  Pope,  L.  R.  5  Ch.  538 ;  S.  C  L.  R.  9  Eq.  206 ;  39  L.  J.  Ch.  (N.  S.) 
148 ;  21  L.  T.  (N.  S.)  816 ;  Crosslev  v.  El  worthy,  L.  R.  12  Eq.  158  ;  S.  C.  40  L.  J. 
(N.  S.)  Ch.  480;  19  W.  R.  842  ;  24  L.  T.  (N.  S.)  607  ;  Mackay  v.  Douglass,  L.  R. 
14  Eq.  106, 120 ;  S.  C.  41  L.  J.  Ch.  (N.  S.)  539 ;  20  W.  R.  652 ;  26  L.T.  (N.  S.)  721 ; 
Cornish  V.  Clark,  L.  R.  14  Eq.  184;  42  L.  J.  (N.  S.)  Ch.  42;  20  W.  R.  897  ;  26 
L.  T.  (N.  S.)  494;  Harden  v.  Babcock,  2  Met.  99;  Mohawk  Bank  y.  Atwater, 
2  Paige,  54;  Clark  v.  Depew,  25  Pa.  St.  509. 

2  Morgan  v.  Hecker,  74  Cal.  540;  Sherman  v.  Hogland,  54  Ind.  578;  Lam- 
mons  t'.  Allen,  88  Ala.  417;  Taylor  t).  Johnson,  113  Ind.  164;  Noble  v.  Ilines, 
72  Ind.  12  ;  Bull  v.  Bray,  89  Cal.  286 ;  Bentley  v.  Dunkle,  57  Ind.  374  ;  Morgan 
V.  Ball,  81  Cal.  93  ;  Rouk  Island  Stove  Co.  v.  Walrod,  75  la.  479  ;  Peck  v.  Lin- 
coln, 76  la.  424  ;  Threlkel  v.  Scott,  89  Cal.  351 ;  Freeman  v.  Burnham,  36  Conn. 

469  ;  Kerrigan  v.  Rautigan,  43  Conn.  17  ;  Dosche  v.  Nette,  81  Tex.  265;  Kent  v. 
Lyon,  4  Fla.  474  ;  Ingram  v.  Phillips,  5  Strob.  L.  200  ;  Hughes  v.  Roper,  42  Tex. 
116;  Terry  v.  O'Neal,  71  Tex.  592;  Hauser  r.  King,  76  Va.  731;  Hayes  v. 
Jones,  2  P.  &  H.  (Va.)  583;  Huston  v.  Cantril,  11  Leigh.  136;  /ti  re  Grant,  2 
Story,  312 ;  S.  C.  5  L.  Rep.  11  ;  Manders  v.  Manders,  4  Irish  Eq.  434.  In  Oliio 
it  is  said  that  he  must  retain  clearly  and  beyond  doubt,  enougli  property  to  pay 
his  debts:  Crumbaugh  v.  Kugler,  2  Ohio  St.  373;  Godell  r.  Taylor,  Wright 
(Ohio),  82;  Price  v.  Myers,  5  Oiiio,  121;  Oliver  v.  Moore,  23  Ohio  St.  473; 
Combs  V.  Watson,  2  Cin.  S.  C.  (Ohio)  523 ;  Jacks  v.  Tunno,  3  Des.  Eq.  1 ;  Strauss 
V.  Avers,  34  Mo.  App.  248  ;  Hurley  v.  Taylor,  78  Mo.  238;  Caswell  r.  Hill,  47  N. 
H.  407  ;  Conover  v.  Rucktnan,  36*  N.  J.  Eq.  493 ;  Abbott  v.  Tenney,  18  N.  H. 
109;  Strawn  v.  O'liara,  86  111.  53;  Virgin  v.  Gaither,  42  111.  39  ;  Bay  v.  Cook, 
31  111.  336;  Gridley  v.  Watson,  53  III.  188;  Kane  v.  Desmond,  63  Cal.  464; 
Winchester  v.  Charter,  12  Allen,  606;  Lerow  r.  Wilmarth,  9  Allen,  382;  "Win- 
chester V.  Charter,  102  Mass.  272;  Parker  v.  Proctor,  9  Mass.  390;  Tootle  r. 
Coldwell,  30  Kan.  125;  Bennett  v.  President,  etc.,  11  Mass.  421;  Parkman  v. 
Welch,  19  Pick.  231  ;  Davis  v.  Zimmerman,  40  Mich.  21;  Fellows  v.  Smith,  40 


Fraudulent  Conveyances.  469 

erty  after  the  gift  is  made  and  before  suit  brought,  suffi- 
cient to  pay  his  indebtedness,  the  gift,  which  otherwise 
would  have  been  open  to  attack,  cannot  be  declared 
void.^  If  the  old  debts  are  paid  off,  yet  the  total  of  the 
donor's  indebtedness  is  the  same,  although  new  debts,  the 
gift  can  still  be  avoided.^  If  the  donor  has  enough 
property  at  the  time  of  the  transfer  to  pay  his  then  exist- 
ing indebtedness,  but  it  so  decrease  in  value  that  at  the 
time  of  the  suit  to  set  aside  the  transfer  it  is  insufficient  to 
pay  such  indebtedness,  the  gift  will  be  upheld.^ 

475.  SuBSEQUEXT  CREDITORS. — The  general  rule  is  that 
subsequent  creditors,  or  creditors  whose  claims  arose  after 
the  gift  was  perfected,  cannot  impeach  it.  They  are  in  no 
way  defrauded  by  the  gift.*  And  even  in  those  States 
where  subsequent  creditors  may  avoid  the  gift  they  can- 
not do  so  if  they  had  actual  or  constructive  notice  of  it, 
even  when  the  donor  retain  possession  after  the  gift  is 
perfected.^ 

476.  Subsequent  and  Sudden  Insolvency. — The  in- 
solvency of  the  donor  arising  after  the  gift  from  a  sudden 

Mich.  689  ;  Cutter  v.  Griswold,  Walker  Ch.  (Mich.)  437 ;  Wood  v.  Savage, 
Walker  Ch.  (Mich.)  471  ;  Beach  v.  White, Walker  Ch.  (Mich.)  495  ;  Chasers. 
Welsh,  45  Mich.  345 ;  Pursel  v.  Armstrong,  37  Mich.  326 ;  Doak  v.  Eunyon,  33 
Mich.  75;  Brown  i'.  Vandermuelen,  44  Mich.  522 ;  Behan  t;.  Erickson,  7  Qub.  L. 
295 ;  Bank  of  Montreal  v.  Simson,  10  L.  C.  225. 

*  Chase  v.  McCay,  21  La.  Ann.  195  ;  Taylor  v.  Johnson,  113  Ind.  164  ;  Cox  v. 
Hunter,  79  Tnd.  590. 

2  Madden  v.  Day,  1  Bail  (S.  C),  L.  337, 
^Treacey  v.  Liggett,  28  Low.  Can.  Jur.  181. 

*  Kerrigan  v.  Rautigan,  43  Conn.  17  ;  Kendrick  v.  Taylor,  27  Tex.  695;  Terry  v, 
O'Neal,  71  Tex.  592;  Stokes  v.  Oliver,  76  Va.  72;  Hayes  v.  Jones,  2  P.  &  II. 
(Va.)  583;  Smith  v.  Littlejolm,  2  McCord,  362;  Page  v.  Kendrick,  10  Mich.  300; 
Dunham  v.  Pitkin,  53  Mich.  504;  In  re  Kellog,  1  Silver.  (N.  Y.)  Ct.  App.  313; 
affirming  39  Hun,  275 ;  Wooden  r.  Wooden,  72  Mich.  347 ;  Hoag  v.  Martin,  80 
la.  714;  Peck  v.  Lincoln,  76  la.  424 ;  In  re  McEachran,  82  Cal.  219. 

5  Madden  v.  Day,  1  Bail.  (S.  C.)  L.  587  ;  Cummingsr.  Coleman,  7  Rich.  Eq.  SOO  ; 
Pyron  v.  Parker,  25  Geo.  17 ;  Jones  v.  Morgan,  6  La.  Ann.  630 ;  Harmon  v.  Ryan, 
10  La.  Ann.  661. 


470  Gifts. 

cause  that  he  could  not  foresee  does  not  render  the  gift 
void,  if,  at  the  time  of  the  gift,  he  had  a  sufficient  amount 
of  property  to  jDay  his  debts.^ 

477.  Gift  Made  With  Intent  to  Defraud  Subse- 
quent Ckeditoes. — If  a  gift  is  made  with  the  intent  to 
defraud  subsequent  creditors  it  may  be  avoided  by 
them.  The  language  of  the  statute  is  that  any  transfer 
of  projjerty  made  with  "  intent  to  delay,  hinder,  or 
defraud  creditors,"  and  a  conveyance  made  with  such 
an  intent,  applies  not  only  to  ]orior  but  to  subsequent 
creditors.  Thus  a  conveyance  by  a  husband  to  his 
wife  of  all  or  a  greater  part  of  his  property,  who 
immediately  or  soon  after  the  execution  of  the  convey- 
ance contracts  debts  on  credit,  is  void  as  against  such 
subsequent  creditors.^ 

478.  Donor  Retaining  Apparent  Ownership  of 
Gift — Notice  of  Gift. — In  some  States  all  gifts  are 
void  against  the  creditors  of  the  donor  if  he  retain  the 
possession  and  is  clothed  with  the  apparent  ownership. 
This  is  usually  by  force  of  some  sj^ecial  statute.  Thus  in 
Iowa  a  statute  j^i'ovided  that  "  no  sale  ...  of  personal 
property,  when  the  vendor  .  .  .  retains  actual  possession 
is  valid  against  existing  creditors  or  subsequent  jDur- 
chasers  without  notice,  unless  a  written  instrument  con- 
veying the  same  is  executed  and  acknowledged  like  a  con- 
veyance of  real  estate,  and  filed  for  record.  .  .  ."     It  was 

1  Buchanan  v.  McNinch,  3  S.  C.  498;  Izard  v.  Middleton,  1  Bail.  (S.  C.)  Eq. 
228. 

''Hood  V.  Jones,  5  Del.  Ch.  77 ;  Stevens  v.  Work,  81  Ind.  445 ;  Bishop  v.  Red- 
mond, 83  Ind.  157;  Thomas  v.  Degraffenreid,  17  Ala.  602;  Dosche  v.  Nette, 
81  Tex.  205 ;  Raymond  v.  Cook,  31  Te.T.  373  ;  Sexton  v.  Wheaton,  8  Wheat.  229 ; 
Webb  V.  Roff,  9  Ohio  St.  430  ;  Creed  v.  President,  etc.,  1  Ohio  St.  1 ;  Conover  v. 
Rufkman,  36  N.  J.  Eq.  493;  Winchester  r.  Charter,  12  Allen,  606;  Thacher  v. 
Phinney,7  Allen,  146;  Muriihy  v.  Stewart,  12  Rev.  Leg.  501. 


Fraudulent  Conveyances.  471 

held  that  this  statute  applied  to  a  gift,  and  the  donor  re- 
taining the  visible  possession,  although  he  was  the  hus- 
band of  the  donee,  the  gift  was  void.^ 

479.  Gift  Void  as  to  Pkior  Creditors,  Kegardless 
OF  THE  Amount  of  the  Donor's  Property. — Many  of 
the  earlier  cases  held  all  gifts  void  as  to  prior  creditors, 
regardless  of  the  amount  of  property  left  in  the  donor's 
hands ;  and  raised,  regardless  of  the  intention,  a  conclu- 
sive presumption  that  such  transfers  were  fraudulent.  To 
this,  however,  there  was  a  qualification,  that  where  the  in- 
debtedness was  slight,  as  for  the  current  expenses  of  the 
family,  or  the  debts  were  inconsiderable  as  compared  with 
the  value  of  the  donor's  estate,  and  the  creditor,  by  his 
delay  or  laches,  allowed  the  estate  remaining  in  his  hands 
to  be  wasted,  the  transfer  would  be  upheld.^ 

480.  Void  as  to  Prior  and  Affect  on  Subsequent 
Creditors. — If  a  gift  is  void  as  to  prior  creditors,  it  is 
also  as  to  subsequent  ones,  if  there  be  such  prior  creditors.^ 
But  here  is  a  sharp  conflict  of  cases ;  and  in  many  States 
it  is  held  that  as  his  subsequent  debtors  gave  him  credit 
as  he  is — for  what  he  has,  not  for  what  he  once  had — they 

1  McAfee  v.  Busby,  69  la.  32S  ;  Hesser  v.  Wilson,  36  la.  152.  In  such  an  in- 
stance the  term  "existing  creditors"  cannot  be  limited  to  those  only  who  were 
creditors  when  the  invalid  gift  was  irade.  It  continues  to  be  invalid  until  the 
possession  is  changed,  the  instrument  recorded,  or  notice  given  ;  and  any  creditors 
becoming  such  wliile  tlie  invalidity  continues  are,  as  to  that  gift,  existing 
creditors:  Fox  v.  Edwards,  38  la.  215;  Madden  v.  Day,  1  Bail.  (S.  C.)  L.  337; 
Smith  V.  Henry,  2  Bail.  (S  C.)  L.  118;  Faiiley  v.  Fairley,  34  Miss.  18;  McWillie 
r.  Van  Vacter,  35  Miss.  428  ;  Demers  v.  Lefebvre,  14  Low.  Can.  Jur.  241 ;  Mor- 
gan V.  Ball,  81  Cal.  93. 

2  Izard  V.  Middleton,  Bail.  (S.  C.)  Eq.  228 ;  Brock  v.  Bowman,  Rich.  (S.  C.)  Eq. 
Cas.  185  ;  Richardson  v.  Rhodus,  14  Rich.  L.  95  ;  Buchanan  v.  McNinch,  3  S.  C.  498  ; 
Howard  v.  Williams,  1  Bail.  L.  (S.  C)  575  ;  Thomas  v.  Degraffenried,  17  Ala. 
602;  Hamilton  v.  Hamilton,  2  Rich.  Eq.  355;  Corderyv.  Zeaiy,  2  Bail.  (S.  C.)  L. 
205;  Ruse  v.  Broniberg,  88  Ala.  619. 

3  Ingram  f.  Phillips,  5  Strobh.  L.  200;  Herschfeldt  v.  George,  6  Mich.  456. 


472  Gifts. 

cannot  impeach  the  gift  on  the  ground  that  prior  credit- 
ors are  defrauded.^ 

481.  Gift  Insignificant  in  Value. — By  far  the 
greater  number  of  gifts  are  small  in  value,  and  the  ques- 
tion of  fraud  as  against  the  creditors  can  have  but  little 
importance ;  for  if  there  is  a  transfer  of  all  the  donor's 
property,  or  the  greater  part  of  it,  a  fraudulent  intent,  at 
least  on  the  part  of  the  donor,  pervades  the  entire  trans- 
action, and  the  design  of  the  donor  to  confer  a  benefit 
upon  the  donee  is  usually  absent.  Gifts  of  small  value, 
although  the  donor  be  hopelessly  insolvent,  will  be  usu- 
ally not  set  aside.  The  value  of  the  gift  is  always  mate- 
rial to  the  character  of  the  transaction ;  and  it  must 
always  be  of  sufficient  value  to  pay  for  the  exj)ense  of  its 
sale  by  an  officer  on  execution.^ 

482.  Gift  of  Property  Exempt  from  Execution. — 
A  gift  of  projDerty  exempt  from  execution  cannot  be  im- 
peached either  by  the  donor's  prior  or  subsequent  credit- 
ors ;  and  it  matters  not  whether  the  article  given  was  of 
the  kind  especially  exempted  by  the  statute,  or  it,  taken 
in  connection  with  the  debtor's  other  property,  is  less  in 
value  than  the  amount  of  the  property  allowed  a  debtor 
against  whom  an  execution  has  been  issued.^ 

483.  Husband  May  Give  His  Services  to  His  Wife 
— Father's  Emancipation  of  His  Minor  Child. — If  a 

^Crumbaugh  v.  Kugler,  2  Ohio  St.  373 ;  Webb  v.  Eoff,  9  Ohio  St.  430;  Creed 
V.  President,  etc.,  1  Ohio  St.  1. 

2  French  v.  Holmes,  67  Me.  186;  Patridge  v.  Gopp,  Amb.  596.  But 
see  Cordery  v.  Zealy,  2  Bail.  (S.  C.)  L.  205;  and  Euse  v.  Bromberg,  88  Ala. 
619. 

^Furman  v.  Tenny,  28  Minn.  77;  Morrison  v.  Abbott,  27  Minn.  116;  Carhart 
V.  Harshaw,  45  Wis.  340;  Delashmut  r.  Tran,  44  la.  613;  Smith  v.  Rumsey,  33 
Mich.  183 ;  Derby  v.  Weyrich,  8  Neb.  174 ;  Washburn  v.  Goodheart,  88  111.  229 ; 
Hixon  V.  George,  18  Kan.  253.    See  Herschfeldt  v.  George,  6  Mich.  456. 


Fraudulent   Conveyances.  473 

husband  give  his  wife  the  benefit  of  his  hibor  by  bestow- 
ing it  or  working  upon  her  property,  she  is  not  liable  to 
his  creditors ;  although  at  the  time  she  accept  or  receive 
it  he  is  totally  insolvent.^  But  it  has  been  held  that  a 
father  may  not  give  his  son  his  services  when  he  is  insol- 
vent,^ though  the  weight  of  authority  is  against  this  hold- 
ing.^ Yet  a  husband  may  give  his  wife  her  earnings, 
although  he  is  at  the  time  hopelessly  insolvent."* 

484.  Donatio  Moktis  Causa. — A  donatio  mortis  causa 
is  always  subject  to  the  payment  of  the  donor's  debts,  if 
his  estate  should  prove  insolvent;  and  his  administrator 
or  executor  may  recover  the  subject-matter  of  such  a  gift 
for  that  purpose.  If,  after  satisfying  the  donor's  indebt- 
edness, any  part  of  the  gift  or  its  proceeds  should  be  left, 
the  donee  is  entitled  to  such  part  or  to  such  proceeds.^ 

485.  Fraudulent  Gift  Binding  Between  DonoPw 
AND  Donee. — A  gift  that  is  void  as  to  the  creditors  of 
the  donor  is  binding  as  between  the  donor  and  the  donee  ; 
neither  can  impeach  it  on  this  ground ;  nor  can  the  donor 
impeach  it  on  the  ground  that  it  is  a  fraud  on  his  credit- 
ors and  he  desires  to  satisfy  their  just  claims.  Only  the 
creditors,  or  the  donor's  administrator  for  them,  can  im- 
peach the  transaction.^ 

1  Aldridge  v.  Muirheai],  101  U.  S.  397  ;  Buckley  r.  Dunn,  67  Miss.  710.  But  if 
a  husband  put  improvements  with  his  own  money  on  his  wife's  land,  it  is  a  fraud 
on  his  creditors:  Ware  v.  Hamilton  Shoe  Co.,  92  Ala.  145. 

2  Moody  V.  Walker,  89  Ala.  619. 

^  Wambold  v.  Vick,  50  Wis.  456  ;  Atwood  v.  Holcomb,  39  Coun.  270 ;  Lackman 
i>.  Wood,  25  Cal.  147. 

*  Carpenter  v.  Franklin,  89  Tenn.  142.  If  he  give  her  a  home  it  is  not  a  fraud 
as  to  his  subsequent  creditors,  merely  because  he  shares  and  enjoys  tlic  home  with 
her:  Edgerly  v.  First  Nat.  Bank,  30  111.  App.  425. 

^Kiffi'.  Weaver,  94  N.  C.  274;  Emery  r.  Clough,  63  N.  H.  552;  Mitcliell  v. 
Pease.  7  Cush.  350  ;  Tate  v.  Hilbert,  2  Ves.  Jr.  Ill  ;  Chase  v.  Eedding,  13  Gray, 
418  ;  Michener  v.  Dale,  23  Pa.  St  59  ;   Lewis  v.  Bolitho.  6  Gray,  137. 

^  Harmon  v.  Harmon,  63  III.  512  ;  Spaulding  v.  BIythe,  73  Ind.  93  ;  Sherman  v. 


474  Gifts. 

486.  Feaudulext  Doxee  Liable  to  Doxok's  Ceedtt- 
ORS. — If  the  gift  is  void  as  to  the  donor's  creditors, 
whether  the  fraud  is  actual  or  only  constructive,  the  do- 
nee must  account  to  them  for  its  value,  or  for  so  much  as 
will  pay  their  claims,^  or  he  may  turn  over  the  subject- 
matter  of  the  gift  to  the  officer  holding  a  writ  of  execu- 
tion against  the  donor.  The  donee  is  in  no  sense  an  in- 
nocent purchaser  for  value,  and  does  not  occupy  the 
jDOsition  of  such  a  purchaser.^ 

487.  Gift  by  a  Thied  Person  to  Another's  Child. 
— A  gift  to  a  child  when  his  father  is  insolvent  cannot  be 
questioned  by  the  latter's  creditors.^ 

488.  Gift  by  Husband  in  Fraud  of  His  Wife  or 
Children. — A  husband  may  make  a  gift  of  his  personal 
property  and  thereby  deprive  his  wife  and  children  of  all 
interest  therein.  She  and  they  have  no  interest  in  such 
property  until  his  death,  and,  therefore,  he  may  wholly 
disregard  her  and  them,  and  make  a  gift  of  his  property, 
either  inter  vivos  or  viortis  causal 

llogland,  73  Ind.  472  ;  Barkley  r.  Tapp,  87  Ind.  25;  McLean  v.  Weeks,  65  Me. 
411.  Of  course,  one  not  a  creditor  of  the  donor  cannot  impeach  the  gift:  Ed- 
wards V.  Ford,  2  Bail.  (S.  C.)  L.  46L 

1  Priest  V.  Conklin,  3S  111.  App.  180. 

^  Strauss  v.  Ayers,  34  Mo.  App.  248  ;  McLean  v.  Weeks,  65  Me.  411  •  S.  C.  61 
Me.  277. 

^Snow  V.  Copley,  3  La.  Ann.  GIO. 

^Pringle  v  Pringle,  59  Pa.  St.  281  ;  Ellmaker  v.  Ellmaker,  4  Watts,  89;  Par- 
thimer's  Estnte.  1  Pears.  433;  S.  C.  16  Pitts.  L.  J.  235;  1  Leg.  Gaz.  Eep.  478; 
Chase  v.  Eeddin?,  13  Grav,  418  ;  Lines  v.  Lines,  142  Pa.  St.  149 ;  Schwartz's  Es- 
tate, 17  Phila.  435  ;  S.  C.  42  Leg.  Int.  16  ;  Ford  v.  Ford,  4  Ala.  (N.  S.)  142;  Smith 
V.  Hines,  10  Fla.  258. 


CHAPTER  XVIII. 

GIFTS    IN    FKAUD    OF    MARITAL    RIGHTS. 


489.  Introduction— An  Early  Case.  504. 

490.  General  Rule. 

491.  Mere  Concealment — Actual  Fraud.     505. 

492.  Reasons  for  the  Rule. 

493.  Husband  Must  Be  Ignorant  of  the    506. 

Conveyance  Until  After  the  Mar- 
riage. 507. 

494.  Conveyance  Before  Treaty  of  Mar- 

riage Entered  Upon. 

495.  Intended  Wife  Dealing  With  Her    508. 

Property     Before      Her      Mar- 
riage. 509. 

496.  Conveyance  of  Part  of  Property. 

497.  Wife     Fraudulently    Representing    510. 

Herself  Possessed  of  Property. 

498.  The    Wife's    Property    Need    Not     511. 

Have  Brought  About  the  Mar- 
riage. 512. 

499.  Husband  Ignorant  of  His  Intended 

Wife  Owning  Property. 

500.  Wife   Incumbering    Her    Lands —     513. 

Leases.  614. 

501.  Release  of  a  Debt  or  Legacy. 

502.  Circumstances  of  the  Parties — Pe-    515. 

cuniary  Means  of  the  Husband. 

503.  Widow  W^ith  Children  Conveying    516. 

Estate.  517. 


Consideration  for  Conveyance — 
Incumbrance  or  Debt. 

Innocent  Purchaser  from  Fraudu- 
lent Grantee. 

Husband  Seducing  His  Intended 
Wife. 

Intended  Husband  Misrepresent- 
ing His  Own  Property  to  His 
Intended  Wife. 

Acquiescence  by  Husband  After 
Marriage. 

Delay  in  Bringing  Suit  to  Set 
Aside  Conveyance. 

Action  by  Personal  Representa- 
tives of  Husband — Heirs. 

Husband's  Creditors  Attacking 
Conveyance. 

Heirs  of  Wife  Attacking  Hus- 
band's Fraudulent  Convey- 
ance. 

The  Decree. 

Husband  Secretly  Conveying  His 
Property, 

Wlien  Wife  May  Sue — Right  of 
Action. 

Personal  Property  of  Husband. 

Married  Woman's  Acts. 


489.  Introduction — An  Early  Case. — One  of  the 
earliest  cases  upon  the  subject  of  frauds  upon  marital  rights 
was  Strathmore  v.  Bowes}  Tlie  case  is  sui  generis.  Lady 
Strathmore  was  the  owner  of  a  large  amount  of  property, 
both  real  and   personal ;  and  while  in  treaty  for  a  mar- 

^  Reported  on  appe:il,  1  Ves.  Jun.  22 ;  and  on  first  and  second  hearing  in  2  Bro. 
C.  C.  345,  1  Sm.  L.  Cas.  471  ;  and  2  Cox  28  ;  A  parallel  case,  with  the  duel  left 
out,  in  Wilson  v.  Daniel,  13  B.  Mon.  348. 

475 


476  Gifts. 

riage  with  a  Mr.  Gray,  she  conveyed  it  all  to  trustees  for 
her  sole  and  separate  use  notwithstanding  any  coverture. 
Gray  a^^proved  of  this  conveyance.  A  few  days  afterward 
a  Mr.  Bowes  fought  a  duel  on  her  account,  and  she  there- 
upon determined  to  marry  Bowes,  which  she  did  within  a 
day  or  so,  and  after  the  conveyance  to  trustees.  Bowes, 
at  the  time  of  the  marriage  had  no  knowledge  of  this  con- 
veyance, but  he  did  have  knowledge  of  the  fact  of  her 
former  ownership  of  j)roperty.  He  filed  a  bill  to  set  aside 
the  settlement,  but  the  court  refused  to  do  so.  In  affirming 
the  decree  dismissing  the  bill,  Lord  Thurlow  delivered  a 
characteristic  opinion  :  "  As  to  the  morality  of  the  trans- 
action," said  he,  "  I  shall  say  nothing.  They  appear  to 
have  been  pretty  well  matched.  Marriage,  in  general, 
seems  to  have  been  Lady  Strathmore's  object ;  she  was 
disposed  to  marry  anybody,  but  not  to  part  with  her 
money.  This  settlement  is  to  be  considered  as  the  effect 
of  a  kind  of  lucid  interval,  and  if  there  can  be  reason  in 
madness  by  doing  this  she  discovered  a  spark  of  under- 
standing. The  question  which  arises  upon  all  the  cases 
is  whether  the  evidence  is  sufficient  to  raise  fraud.  Even 
if  there  had  been  a  fraud  upon  Gray,  I  would  not  have 
permitted  Bowes  to  come  here  to  complain  of  it.  But 
there  was  no  fraud,  even  upon  Gray,  for  it  was  with  his 
consent ;  so  I  cannot  distinguish  it  from  a  good  limitation 
to  her  separate  use.  Being  about  to  marry  Gray  she 
made  this  settlement  with  his  knowledge,  and  the  impu- 
tation of  fraud  is  that,  having  suddenly  changed  her 
mind  and  married  Mr.  Bowes,  in  the  hurry  of  that  im- 
provident transaction,  she  did  not  communicate  it  to  him  ; 
but  there  was  no  time,  and  could  be  no  fraud,  which  con- 
sists of  a  number  of  circumstances.  It  is  impossible  for 
a  man,  marrying  in  the  manner  Bowes  did,  to  come  into 
equity  and  talk  of  fraud."     It  is  somewhat  difficult  to  say 


Cfifts  in  Fraud  of  Marital  Rights.  477 

upon  exactly  what  principle  this  case  was  decided.  In  the 
first  part  of  his  Oj^inion  Lord  Thiirlow  seems  to  consider 
that  the  principle  by  which  a  husband  is  relieved  from  a 
conveyance  under  such  circumstances  is  the  rule  of  law 
that  inasmuch  as  the  law  charges  the  husband  with  the 
wife's  debts  or  burdens,  therefore  he  is  entitled  in  full  to 
his  marital  rights ;  but  in  the  latter  part  of  his  opinion, 
as  above  quoted,  he  says  that  the  question  in  all  these  cases 
is  one  of  fraud,  meaning  no  doubt  actual  fraud.  The 
latter  view  is  no  doubt  the  correct  view  of  this  case,  for 
in  a  later  case  Lord  Eldon  said  :  "  I  should  be  very  un- 
willing to  relax  a  principle  which  has  long  prevailed 
both  at  law  and  in  equity,  that  if  a  representation  is  made 
upon  the  circumstances  of  a  person  about  to  form  a  con- 
nection in  marriage,  and  the  representation  is  of  such  a 
nature  that  if  not  made  good,  or,  if  varied,  it  will  mate- 
rially affect  the  circumstances  in  life  of  that  party,  courts 
both  of  law  and  equity  will  hold  the  party  bound  to  make 
good  that  representation."  ^  In  Lady  Strathmore^s  case  it 
will  be  observed  that  at  the  time  she  made  the  convey- 
ance she  had  no  intention  whatever  of  defrauding  her 
future  husband,  and  at  that  time  she  had  no  intent  what- 
ever of  marrying  the  gentleman  she  afterward  married. 
Mr.  Bowes  by  inquiry  could  have  easily  ascertained  that 
a  conveyance  of  the  property  had  been  made ;  and  if  she 
had,  on  such  inquiry,  concealed  this  fact  from  him,  he 
would  not  have  been  without  a  remedy.  Justice  Buller  in 
deciding  this  same  case  says,  speaking  of  a  case  where  a 
woman  has  never  been  married  :  "  Fraud  as  applied  to 
cases  of  this  nature,  is  falsely  holding  out  an  estate  to  be 
unfettered,  and  that  the  intended  husband  will,  as  such, 
be  entitled  to  it  when  in  fact  it  is  disposed  of  from  him," 
After  reviewing  the  cases  he  announces  the  result  as  fol- 

^  De  Manneville  v.  Crompton,  1  Ves.  &  B.,  p.  355. 


478  Gifts. 

lows  :  "  If  the  wife  is  guilty  of  any  fraud,  and  holds  out  to 
the  husband  that  there  is  nothing  to  interfere  with  his 
right,  then  any  deed  executed  by  her,  in  prejudice  of  such 
representation,  shall  be  void."  Bare  concealment  he  de- 
clares is  not  sufficient/  Justice  Buller  also  announces  the 
rule  to  be  that  a  court  of  equity  will  not  decree  the  wife's 
conveyance  void  until  the  husband  makes  a  settlement 
upon  her. 

490.  General  E,ule. — In  a  more  recent  case  the  Mas- 
ter of  the  Rolls  declared  the  rule  to  be  as  follows,  to  render 
a  conveyance  by  the  wife  fraudulent :  "It  must  be  made 
out  in  evidence,  that,  at  the  time  of  the  execution  of  the 
settlement,  marriage  was  in  the  contemplation  of  the  par- 
ties ;  that  the  woman  executed  the  settlement  in  contem- 
jDlation  of  the  future  marriage ;  and  that  she  concealed  it 
from  her  future  husband.  If  these  facts  be  proved,  the 
cases  have  established  the  principle  that  such  a  settlement 
cannot  stand  against  the  marital  right  of  the  husband." 
In  the  case  from  which  this  quotation  is  made  it  appeared 
that  a  woman,  ten  months  before  her  marriage,  but  after 
the  commencement  of  that  intimate  acquaintance  with  her 
future  husband  which  ended  in  marriage,  made  a  settle- 
ment of  a  sum  of  money  which  he  did  not  know  her  to 
be  possessed  of.  The  marriage  then  took  place,  she  con- 
cealino;  from  him  both  her  rii>;ht  to  the  monev  and  the 
existence  of  the  settlement.  The  settlement  was  condi- 
tioned to  pay  the  interest  to  her  during  her  life,  for  her 
separate  use,  and  after  her  death  upon  trust  for  such  per- 
son or  persons  as  she  should  by  deed  or  will  appoint ;  and 
in  default  of  appointment  for  her  next  of  kin.  Ten  years 
afterward  she  died,  and  her  husband  then  filed  a  bill  to 
have  the  money  paid  to  him.    It  was  held  that  the  settle- 

1  2  Cox,  28. 


Gifts  in  Fraud  of  Marital  Rights.  479 

ment  was  void,  because  it  was  a  fraud  upon  his  marital 
rights/  There  was  no  evidence  in  the  case  that  the  hus- 
band ever  knew  of  the  settlement  until  after  her  death, 
so  that  the  principle  applicable  to  acquiescence  in  the 
settlement  did  not  apply.  As  early  as  1686  a  similar 
case  arose  in  the  court  of  chancery.  Before  her  mar- 
riage Lady  Dayrill,  without  her  future  husband's  privity, 
conveyed  her  estate  to  the  Earl  of  Dorset  and  his  heirs, 
in  trust  that  they  should  permit  such  persons  to  re- 
ceive the  rents  and  profits,  and  dispose  of  them,  as 
she,  whether  covert  or  not,  should  appoint.  It  does  not 
appear  whether  marriage  negotiations  w^ere  pending  at 
tlie  time  of  the  conveyance  or  not,  but  the  court  decreed 
the  conveyance  void,  and  ordered  that  the  land  be  con- 
veyed to  the  six  clerks,  subject  to  the  order  of  the  court.^ 

^  Goddard  v.  Snow,  1  Russ.  485. 

^Carleton  v.  Earl  of  Dorset,  2  Vern.  17  ;  S.  C.  Eq.  Ca.  Abr.  59,  pi.  3  ;  Blancliet 
V.  Foster,  2  Ves.  Sr.  264  ;  Cotton  v.  King,  2  P.  Wms.  358  ;  S.  C.  2  Eq.  Ca.  Abr.  53, 
pi.  10;  Ball  V.  Montgomery,  2  Ves.  Jr.  191;  S.  C.  4  Bro.  C.  C  339;  Hunt  v. 
Mathews,  1  Vern.  408  ;  Poulson  v.  Wellington,  2  P.  Wms.  533  ;  Lance  v.  Norman, 
2  Ch.  Rep.  79 ;  Howard  v.  Hooker,  2  Cli.  Cas.  81  ;  Thomas  v.  "Williams,  Mose,  177. 
"The  other  and  main  ground  of  reliance  is  that  the  deeds  were  in  fraud  of  the 
intended  husband's  rights,  upon  the  principle  that  a  voluntary  conveyance  by  a 
woman,  while  marriage  is  in  contemplation,  is  avoidable  by  the  husband  from 
whom  it  was  concealed,  or  who,  at  least,  had  no  notice  of  it.  This  principle  has 
been  often  laid  down,  but  it  has  been  very  rarely  acted  upon  to  the  extent  of 
avoiding  by  judicial  decision  a  conveyance  in  fraud  of  the  future  husband's  rights. 
In  almost  all  the  cases  where  the  principle  is  recognized,  there  were  circumstances 
which  the  court  laid  hold  of  to  escape  from  the  application  of  the  rule,  or  which 
really  took  those  cases  out  of  the  rule.  .  .  .  The  cases  are  either  such  as  ended  in 
allowing  the  conveyance  to  stand,  on  account  of  something  which  prevented  the 
application  of  the  principle,  while  it  was  in  general  terms  recognized;  or  such 
as  ended  in  setting  aside  the  conveyance  upon  grounds  wholly  independent  of  the 
principle;  or  such  (and  these  are  extremely  few — two  or  three,  at  most)  as  ap- 
plied the  principle  to  setting  aside  the  conveyance,  but  in  circumstances  of  gross 
fraud  and  even  cnnsjtiracy.  .  .  .  Yet  it  is  certain  that  all  the  cases  in  which  the 
subject  is  approached  treat  the  principle  as  one  of  undoubted  acceptance  in  this 
court;  and  it  must  be  held  to  be  the  rule  of  the  court,  to  be  gathered  from  a  uni- 
form current  of  dicta,  though  resting  upon  a  very  slender  foundation  of  actual 
decision  touching  the  simple  point:"  Lord  Brougham  in  St.  George  r.  Wake, 
1  My.  &  K.  610  (1833) ;  Blithe's  Case,  Freem.  Ch.  91  ;  M'Donnell  v.  Uesilrige, 


480  Gifts. 

Some  of  the  earlier  cases  held,  apparently,  that  there 
must  be  actual  fraud  proved,  and  that  a  constructive  fraud 
is  not  enough ;  but  this  rule  is  now  well  doubted.  As 
early  as  1842  it  was  held  by  the  Vice-Chancellor  of  Eng- 
land that  the  husband  was  not  required  to  prove  actual 
fraud  or  deception,  if,  after  the  commencement  of  the 
treaty  of  marriage,  the  intended  wife  secretly  disposed  of 
her  proj^erty.  The  Vice-Chancellor  held  that  deception 
would  be  inferred.^     American  cases  strongly  lean  to  the 

16  Beav.  346;  Chambers  ».  Crabbe,  34  Beav.  457  ;  Maber  v.  Hobbs,  2  Y.  &  Col. 
317;  Doe  v.  Lewis,  11  C.  B.  1035.  American  authorities:  Tucker  v.  Andrews,  13 
Me.  124;  Land  v.  Jeffries,  5  Rand,  211 ;  Fletcher  v.  Ashley,  6  Gratt.  332;  Wil- 
liams V.  Carle,  2  Stock.  (N.  J.)  Ch.  543;  Logan  v.  Simmons,  3  Ired.  Eq.  487; 
Logan  V.  Simmons,  1  Dev.  &  Bat.  L.  13  (not  a  fraud  at  law) ;  Goodson  v.  Whitfield, 
5  Ired.  Eq.  163;  Poston  v.  Gillespie,  5  Jones  Eq.  258;  Joyner  v.  Denny,  Busbee 
Eq.  176;  Linker  v.  Smith,  4  Wash.  224;  Terry  v.  Hopkins,  1  Hill,  Ch.  (S.  C.)  1 ; 
Ramsay  r.  Joyce,  1  McMull  Eq.  236;  Manes  v.  Durant,  2  Rich.  Eq.  404  (said  to 
be  an  innocent  purchaser  for  value);  Cummings  i;.  Coleman,  7  Rich.  Eq.  509; 
McClure  v.  Miller,  1  Bailey  Eq.  107  ;.  Waller  v.  Armistead,  2  Leigh,  11 ;  Belt  v.  Fer- 
guson, 3  Gr.  (Pa.)  289  ;  Robinson  v.  Buck,  71  Pa.  St.  386  (grantee  must  show  that 
he  had  no  knowledge  of  the  fraud  perpetrated  on  the  husband) ;  Duncan's  Appeal, 
43  Pa.  St.  67 ;  McAfee  v.  Ferguson,  9  B.  Mon.  475  ;  Wilson  v.  Daniel,  13  B.  Mon. 
348;  Leach  v.  Duvall,  8  Bush.  201 ;  Cheshire  v.  Payne,  16  B.  Mon.  618;  Hobbs 
V.  Blandford,  7  T.  B.  Mon.  469  ;  Cole  v.  O'Neill,  3  Md.  Ch.  174 ;  Jordan  v.  Black, 
Meigs,  142;  Saunders  i'.  Harris,  1  Head.  185  (a  question  of  actual  fraud) ;  Green 
V.  Goodall,  1  Coldw.  404;  Hall  v.  Carmichael,  8  Baxt,  211  (each  case  judged  by 
its  own  circnrastances) ;  Butler  v.  Butler,  21  Kan.  521 ;  S.  C.  30  Am.  Rep.  441 ; 
Freeman  v.  Hartman,  45  111.  57  ;  Kelly  r.  McGrath,  70  Ala.  75 ;  Crauson  v.  Cran- 
son,  4  Mich.  230  ;  Brown  ?.'.  Bronson,  35  Mich.  415  (it  does  not  change  the  fraudu- 
lent transaction  into  a  valid  one  by  reas(m  of  the  fact  that  the  deed  was  executed 
to  carry  out  a  previous  purpose,  which  is  concealed  from  the  wife  and  from  the 
public,  and  not  brought  to  light  until  after  the  death  of  the  grantor) ;  Dearmond 
V.  Dearmond,  10  Ind.  191 ;  Smith  v.  Smith,  2  Halst.  Eq.  515;  Jenny  v.  Jenny, 
24  Vt.  324 ;  Gainor  v.  Gainor,  26  la.  337 ;  Hamilton  v.  Smith,  57  la.  1 5  ;  Chandler  v. 
Hollingsworth,  3  Del.  99 ;  S.  C.  17  Am.  L.  Reg.  31 9  ( in  this  last  case  it  is  held  that  the 
wife  cannot  claim  an  interest  in  personal  property  thus  fraudulently  disposed  of) ; 
Baker  v.  Chase,  6  Hill,  482  (not  void  at  law) ;  Youngs  v.  Carter,  50  How.  Pr.  410; 
S.  C.  1  Abb.  N.  C.  136 ;  10  Hun,  194  (to  his  daughters) ;  Reynolds  v.  Vance, 
1  Heisk.  344  (actual  fraud  necessary) ;  Brewer  v.  Connell,  11  Humph.  500  (void 
by  statute) ;  Babcock  v.  Babcock,  53  How.  Pr.  97  ;  Gregory  v.  Winston,  23  Gratt. 
102 ;  Anonymous,  34  Ala.  430 ;  Prather  v.  Burgess,  5  Cranch.  C.  C.  376. 

^  Taylor  v.  Pugh,  1  Hare,  608  ;  Spencer  v.  Spencer,  3  Jones  Eq.  404  ;  Tisdale  v. 
Bailey,  6  Ired.  Eq.  358. 


Gifts  in  Fraud  of  Marital  Rights.  481 

proposition  that  the  mere  conveyance,  without  his  knowl- 
edge, is  such  a  fraud  upon  him  as  entitles  him  to  relief/ 

491.  Mere  Concealment — Actual  Fraud. — Some- 
what in  repetition  it  may  be  said  that  proof  of  direct  mis- 
representations by  a  wife  as  to  her  property,  or  of  willful 
concealment  with  intent  to  deceive  him,  entitles  him  to 
relief  if  he  has  suffered  an  injury ;  but  proof  of  mere 
concealment  is  not  always  enough,  it  has  been  said,  to  af- 
ford the  husband  relief.  It  may  or  it  may  not,  accord- 
ing to  circumstances.  The  vesting  and  continuance  of  a 
separate  power  in  his  wife  over  j^roperty  which  ought  to 
have  been  his,  and  which  is,  without  his  consent,  made 
independent  of  his  control,  is  a  surprise  upon  him,  and 
might,  if  previously  known,  have  induced  him  to  abstain 
from  marriage.  "  Nevertheless,  cases  have  occurred  in 
which  conceahnent,  or  rather  the  non-existence  of  com- 
munication to  the  husband,  has  been  held  fraudulent,^ 
and  whether  fraud  is  made  out  must  depend  on  the  cir- 
cumstances of  each  case — as  an  unmarried  woman  has  a 
right  to  dispose  of  her  property  as  she  pleases,  and  as  a 
conveyance  made  immediately  before  her  marriage  is 
prima  facie  good,  it  is  to  be  impeached  only  by  the  proof 
of  fraud."  =^ 

'  Strong  V.  Menzies,  6  Ired.  Eq.  544  ;  Tisdale  v.  Bailev,  6  Ired.  Eq.  358  ;  Jones 
V.  Cole,  2  Bailey  L.  330 ;  Belt  v.  Ferguson,  7  Gr.  (Pa.)  289 ;  Robinson  v.  Buck,  71 
Pa.  St.  386  (prima facie  a  fraud);  McAfee  v.  Ferguson,  9  B  Mon.  475;  "Wilton  v. 
Daniel,  13  B.  Mon.  348 ;  Leach  v.  Duvall,  8  Bush.  201. 

^Goddard  v.  Snow,  1  Russ.,  p.  490,  for  instance. 

'England  v.  Downs,  2  Beav.  522.  "With  the  exception  of  Goddard  v.  Snow, 
indeed,  there  will  not  be  found  any  direct  authority  for  holding  that  the  bare 
fact  of  the  husband  not  knowing  what  had  been  done  is  enough  witliout  more,  so 
that  the  transaction  is  fraudulent  and  void  as  against  him,  although  nothing  has 
been  done  to  mislead  him ;  and  the  authorities  of  Buller,  J.,  in  one  of  the  cases 
of  Lady  Slrathmore  v.  Bowes,  and  of  Lord  Eldon,  in  DeMannevUle  v.  Cromplon,  are 
directly  and  strongly  the  other  way.  Yet  even  in  Goddard  v.  Snnir,  it  is  to  be 
observed  tliat  the  peculiar  circumstances  of  the  Imgth  of  time  which  first  the 
courtship,  and  then  the  coverture  lasted,  plainly  showed  a  willful  and  continued 
31 


482  Gifts. 

492.  Reasons  for  the  Rule. — At  the  time  this  rule 
had  its  origin  there  were  some  reasons  for  it.  Then  a  man 
marrying  a  woman  became  liable  for  all  her  previous  in- 
debtedness, and  as  an  indemnity  against  these  the  law 
gave  him  all  her  personal  property,  the  rents  and  profits 
of  her  lands  and  the  right  to  control  them,  and  an  estate 
by  curtesy  in  such  lands,  if  they  had  issue,  during  his 
life.  To,  therefore,  allow  her  to  secretly  dispose  of  her 
lands  and  property,  without  his  consent  and  knowledge, 
immediately  before  the  marriage,  was  a  substantial  fraud 
upon  him  and  his  marital  rights,  and  hence  the  reason 
for  the  rule.^ 

493.  Husband  Must  Be  Ignorant  of  the  Con- 
veyance Until  After  the  Marriage. — If  the  husband 
has  any  knowledge  of  the  conveyance  at  any  time  before 
the  marriage,  he  cannot  complain  ;  for  he  may  break  off 
the  marriage  without  fear  of  subjecting  himself  to  a  suit 
for  damages,  at  any  time  before  its  consummation.  It 
therefore  devolves  upon  him  to  show  that  he  had  no 
knowledge  of  the  conveyance  until  after  the  marriage.^ 
The  presumption  is  that  the  husband  had  knowledge  of 
the  conveyance  before  he  married,  and  he  must  negative 
this  presumption  both  in  his  pleading  and  in  his  evidence 
or  he  will  fail.^     Where  a  husband,  before  his  marriage 

suppression  of  the  fact :  "  St.  George  v.  Walker,  1  My.  &  K.  610.  See  2  Cox,  28. 
Actual  fraud  must  be  shown  :  Butler  v.  Butler,  21  Kan.  521 ;  S.  C.  30  Am.  Rep. 
441 ;  Gregory  v.  Winston,  23  Gratt.  102. 

^  England  v.  Downs,  2  Beav.  622. 

2  England  v.  Downs,  2  Beav.  522 ;  Williams  r.  Carle,  2  Stock.  (N.  J.)  Ch.  543  ; 
St.  George  v.  Wake,  1  My.  &  K.  610,  618;  Taylor  v.  Pugh,  1  Hare,  608;  Downer 
v.  Jennings,  32  Beav.  290;  Terry  r.  Hopkins,  1  Hill  Ch.  (S.  C)  1  ;  McClure  v. 
Miller,  1  Bailey  Eq.  107  ;  Cheshire  v.  Payne,  10  B.  Mon  618. 

^  St.  George  v.  Wake,  supra;  Taylor  v  Pugh,  1  Hare,  608;  Griggs  v.  Staplee, 
2  De  G.  &  Sm.  572.  In  this  last  case  both  the  liusband  and  wife  joined  in  a  bill  to 
set  aside  the  conveyance,  and  the  court  said  relief  would  be  afforded  if  cer:ain 
necessary  proof  be  forthcoming  :  Lewellin  v.  Cobbold,  1  Sm.  &  Giff.  376. 


Gifts  ill  Fraud  of  3Iarital  Rights.  483 

had  sufficiently  early  notice  that  it  was  intended  to  settle 
the  bulk  of  the  intended  wife's  property,  and  nothing 
jDassed  to  justify  a  belief,  on  the  husband's  part,  that, 
at  the  time  of  the  marriage,  no  such  settlement  had  been 
made,  it  was  held  that  the  husband  was  not  entitled  to  set 
aside  a  settlement  which  it  appeared  had  been  made  be- 
fore the  marriage,  although  he  was  no  party  to  it,  and  was 
not  proved  to  have  been  actually  cognizant  of  any  settle- 
ment having  been  made/  A  mere  rumor  before  marriage, 
which  he  does  not  believe,  that  she  has  conveyed  her 
property  is  not  sufficient  notice  to  defeat  a  recovery.^  It 
has  also  been  held  that  if  the  knowledge  of  the  con- 
veyance is  acquired  after  the  engagement  and  before  the 
marriage,  the  husband  may  yet  proceed  with  the  marriage 
and  then  have  the  conveyance  annulled.^  But  in  Ken- 
tucky this  view  was  entirely  repudiated.  "  As  it  is  essen- 
tial," said  the  Supreme  Court  of  that  commonwealth, 
"  to  constitute  fraud,  that  the  husband  should  remain  ig- 
norant of  the  transaction  until  the  marriage  ceremony 
takes  place,  it  follows  as  a  necessary  consequence  that  his 
knowledge  of  it  at  any  time  previous  to  that  period  will 
operate  to  prevent  him  from  impeaching  the  conveyance 
on  the  ground  of  fraud.  In  reference  to  his  knowledge 
the  law  fixes  but  one  period,  and  that  is  the  time  of  the 
marriage;  it  does  not  draw  any  nice  distinctions  witli 
respect  to  the  length  of  the  time  before  that  period,  but 
considers  any  previous  time  as  sufficient,  and  leaves  the 
husband  to  act  for  himself,  according  to  his  own  sense  of 
justice  and  propriety.  Until  the  marriage  actually  takes 
place  he  is  at  liberty  to  retreat,  and  the  law  justifies  him 

'  Wrigley  v.  Swainson,  3  De  G.  &  Sni.  458. 

^Spencer  v.  Spencer,  3  Jones  Eq.  404.  In  this  case  it  was  held  that  the  defense 
must  show  that  lie  knew  of  the  transfer  bef  tre  the  marriage.  See,  also,  llobbs  v. 
Blandford,  7  T.  B.  Men.  469. 

2  Poston  V.  Gillespie,  5  Jones  Eq.  258. 


484  Gifts. 

in  so  doing,  if  he  be  notified  that  his  intended  wife,  with- 
out his  assent,  made  a  settlement  of  her  estate  that  will  be 
prejudicial  to  his  marital  rights.  But,  if  with  this  knowl- 
edge, acquired  at  any  time  before  the  marriage  actually 
takes  place,  he  voluntarily  complies  with  his  previous  en- 
gagement, he  cannot  complain  that  he  was  deceived,  nor 
will  the  transaction  be  deemed  to  be  a  fraud  upon  his 
rights  as  husband.  As,  therefore,  the  husband  has  ad- 
mitted that  he  was  informed  of  the  transaction  before  the 
marriage  ceremony  was  performed,  he  cannot  assail  it  on 
the  ground  that  it  was  fraudulent  as  to  him,  although  that 
information  was  only  imparted  to  him  after  he  had  ar- 
rived at  the  place  fixed  for  the  wedding,  and  a  few  mo- 
ments only  before  the  marriage  did  take  place."  ^ 

494.  CoxvEYAifCE  Before  Treaty  of  Marriage 
Entered  Upon. — A  conveyance  to  be  fraudulent  must  be 
made  after  a  treaty  of  marriage  has  been  entered  upon,  for 
if  made  before  that  period  there  can  be  no  fraud  upon  the 
husband.  A  general  intent  to  protect  the  property  from 
a  future  husband  with  no  particular  one  in  view,  and 
before  such  future  husband  has  in  any  way  indicated  his 
desire  of  marria2;e  with  the  future  wife  is  not  a  fraud.^ 
Thus  where  in  August  a  widow,  having  a  second  mar- 
riage in  contemplation,  settled  her  property  on  herself 
for  life,  for  her  separate  use,  with  remainder  to  the  chil- 
dren of  her  first  marriage — the  settlement  being  prepared 
in  August  by  her  directions,  without  the  privity  or  assent 
"  of  her  then  intended  husband  " — in  a  suit  to  carry  the 
settlement   into  execution,  the  second  husband   insisted 

1  Cheshire  v.  Payne,  16  B.  Mon.  618  (overruling:;  on  this  point  HoLbs  v.  Bland- 
ford,  7  T.  B.  Mon.  469) ;  Ashton  r.  M'Dougall,  5  Beav.  56.  Tn  Maryland  he  is 
chargeable  with  constructive  notice  by  the  registration  of  the  deed :  Cole  v. 
O'Neill,  3  Md.  Ch.  174;  Jordan  v.  Black,  Meigs,  142  ;  Gainor  r.  Gainor,  26  la. 
337. 

2  Cotton  r.  King,  2  P.  Wms.  358. 


Gifts  ill  Fraud  of  Marital  Rights.  485 

that  it  was  void,  but  it  was  not  shown  that  in  August  he 
was  "  the  intended  husband,"  aUhough  the  marriage  took 
place  in  the  following  October  ;  it  was  held  that  the  evi- 
dence was  insufficient  to  impeach  the  deed.^ 

495.  Intended  Wife  Dealing  with  Her  Property 
Before  Her  Engagement. — A  question  of  much  deli- 
cacy arises  with  respect  to  the  woman's  dealing  with  her 
property  after  her  engagement,  or  in  fact,  after  she  has 
entered  upon  a  treaty  of  marriage.  Both  parties  often 
have  a  marriage  in  view  long  before  there  is  an  actual 
binding  obligation  entered  into.  The  matter  of  court- 
ship may  even  extend  over  a  number  of  years ;  and  to 
say  to  the  wife  that  she  may  not  dispose  of  her  property, 
even  by  gift,  during  these  years  is  to  either  deprive  her 
of  the  right  of  disposing  of  her  property  as  any  other  or- 
dinary individual,  or  to  compel  her  to  break  off  all  atten- 
tions on  the  part  of  the  man,  or  to  put  her  in  the  indeli- 
cate position  of  asking  his  leave  to  sell  or  dispose  of  her 
property  before  he  is  under  any  obligation  to  marry  her. 
In  questions  of  this  kind  it  is  not  too  harsh  a  rule  to  hold 
that  the  intended  husband  loses  his  right  to  an  interest 
in  her  pro^^erty  by  not  with  reasonable  speed  pressing 
his  suit  to  an  engagement ;  but  if  the  delay  is  occasioned 
by  the  intended  wife's  obstinacy  or  delay,  then  he  does 
not.  But  after  the  engagement,  even  though  the  day  of 
marriage  is  delayed  by  his  non-action,  he  has  a  right  to 
be  consulted  before  she  disposes  of  her  property.  Yet 
here  arises  a  second  delicate  question,  if  he  is  the  cause  of 
the  delay.  Must  she  demand  a  speedy  marriage,  or  be  de- 

^  England  v.  Downs,  2  Beav.  522  ;  Poslon  v.  Gillespie,  5  Jones  Eq.  258  :  Cum- 
mings  V.  Coleman,  7  Rich.  Eq.  509;  Cheshire  v.  Payne,  IG  B.  Mon.  618;  Cole  v. 
O'Neill,  3  Md.  Ch.  174 ;  Gaiiior  v.  Gainer,  26  la.  337  ;  Baird  v.  Stearne,  15 
Phila.  339  ;  S.  C.  39  Leg.  Lit.  374  (an  engagement  is  not  necessary  to  render  tlie 
conveyance  void) ;  Gregory  v.  "Winston,  23  Gratt.  102. 


486  Gifts. 

prived  of  her  right  of  disposal  for  a  long  period  of  time ; 
must  she  present  to  him  the  alternative  of  marrying  her 
at  once  or  of  losing  his  prospective  right  to  an  interest  in 
her  property  ?  or  must  she  altogether  break  off  the  mar- 
riage engagement  in  order  to  dispose  of  her  proj)erty  ? 
These  are  questions  unanswered  by  the  courts ;  but  com- 
mon sense  would  seem  to  indicate  that  here,  too,  by  his 
laches  he  may  lose  his  prospective  right  in  her  proj)erty/ 

496.  Conveyance  of  Part  of  Peoperty. — Whether 
or  not  the  mere  conveyance  of  a  part  of  her  proj^erty, 
without  any  actual  intent  of  defrauding  her  husband,  was 
a  sufficient  fraud  to  set  it  aside  was  doubted  in  one  case ; 
but  it  was  held  that  if  the  facts  clearly  show  that  she  in- 
tended to  deceive  and  defraud  him,  it  would  be  such  a 
fraud  as  he  would  be  entitled  to  relief  against.^ 

497.  Wife  Fraudulently  Representing  Herself 
Possessed  of  Property. — Should  the  wife,  in  her  treaty 
of  marriage,  fraudulently  represent  herself  as  the  owner 
of  real  or  j^ersonal  property,  with  the  intent  thereby  to 
induce  her  suitor  to  marry  her,  when  in  fact  she  owned 
none,  he  is  without  a  remedy.  So  "  the  non-acquisition 
of  property,  of  which  he  had  no  notice,  is  no  disappoint- 
ment."^ And  the  same  is  true  where  the  husband  deceive 
his  intended  wife.  ''A  wife  acquires  by  marriage  no  right 
to  the  property  of  her  husband,  and  she  cannot  maintain 
a  bill  in  equity  to  set  aside  a  deed  of  gift  executed  by  him 

^  See  Poston  v.  Gillespie,  5  Jones  Eq.  258 ;  Butler  v.  Butler,  21  Kan.  521 ;  S.  C. 
30  Am.  Rep.  441.  That  an  actual  engagement  is  not  necessary  to  render  the 
conveyance  void,  see  Baird  v.  Stearne,  15  Phila.  339 ;  S.  C.  39  Leg.  Int.  374. 

^  Logan  V.  Simmons,  3  Ired.  Eq.  487.  In  Kansas,  where  it  was  not  shown  that 
all  of  the  husband's  property  had  been  conveyed  by  him,  that  fact  was  allowed 
much  weight  in  deciding  the  case  against  the  wife :  Butler  v.  Butler,  21  Kan.  521 ; 
S.  C.  30  Am.  Rep.  441. 

^  England  v.  Downs,  2  Beav.  522. 


Gifts  in  Fraud  of  Marital  Rights.  487 

previous  to  the  marriage,  on  the  ground  that  he  contin- 
ued in  possession,  and  that  she  married  him  under  the  im- 
pression that  the  property  was  his."  ^ 

498.  The  Wife's  Pkoperty  Need  Not  Have 
Brought  About  the  Marriage. — It  cannot  be  said 
with  strictness  that  the  wife's  property  must  have  brought 
about  the  marriage ;  for  where  the  husband  never  knew 
until  after  his  marriage  that  the  wife  was  possessed  of 
property,  then  such  property  can  in  no  way  have  induced 
him  to  marry  her.  Bat  in  England,  up  to  1833,  there 
was  but  one  case  of  this  kind,^  and  there  the  husband 
succeeded. 

499.  Husband  Ignorant  of  His  Intended  Wife 
Owning  Property. — In  a  line  with  the  preceding  sec- 
tion it  is  immaterial  that  the  husband,  at  the  time  of  the 
marriage,  was  ignorant  of  the  fact  that  his  wife  was  the 
owner  qjl  property.  In  several  of  the  cases  cited  the 
husband  knew  nothing  of  the  fact  of  her  ownership  until 
after  her  death.  His  equity  does  not  rest  upon  his  knowl- 
edge of  what  she  owns  at  the  time  she  marries  him  ;  but 
upon  his  marital  rights  in  all  her  property  which  she 
owned  at  the  time  the  treaty  of  marriage  is  entered  upon.^ 

500.  Wife  Incumbering  Her  Land  —  Leases. — 
What  is  true  of  a  wife  secretly  conveying  her  lands  is 
also  true  if  she  secretly  place  a  mortgage  upon,  or  exe- 
cutes a  lease  of  them.  Both  acts  are  frauds  upon  the 
husband.* 

1  Gibson  v.  Carson,  3  Ala.  421 ;  Cranson  v.  Cranson,  4  Mich.  230;  Tate  v.  Tate, 
1  Dev.  &  B.  Eq.  22;  Klein  «  Wolf^ohn,  1  Abb.  N.  C.  134;  Wier  v.  Still,  31  la. 
107.     But  see,  as  to  wife's  right  of  action,  Section  515. 

^  Goddard  v.  Snow,  1  Russ.  485. 

*  Taylor  v.  Pugh,  1  Hare,  608;  Lewellin  v.  Cobbold,  1  Sm.  &  G.  376  ;  Chandler 
V.  Holiingsworth,  3  Del.  99;  S.  C.  17  Am.  L.  Reg.  319. 

*  Thomas  v.  Williams,  Mose,  177;  King  t;.  Cotton,   Mose,  259;  Busenbark  v. 


488  Gifts. 

501.  Release  of  a  Debt  or  Legacy. — If  the  in- 
tended wife  has  a  valid  claim  against  a  third  person, 
whether  secured  or  not,  and  secretly  releases  it  before  her 
marriage,  the  release  will  be  set  aside  on  the  application  of 
the  husband ;  and  the  same  is  true  of  a  legacy  that  she 
may  have  released.^ 

502.  Circumstances  of  the  Parties — Pecuniary 
Means  of  the  Husband. — Lord  Brougham,  after  re- 
viewing all  the  cases  up  to  the  date  of  his  decision  (1833), 
said :  "  Furthermore,  the  cases  would  even  seem  to  author- 
ize us  in  taking  all  the  circumstances  of  the  parties  into 
consideration,  as  the  meritorious  object  of  the  conveyance, 
and  the  situation  of  the  husband  in  point  of  pecuniary 
means."  ^  But  this  rule  may  be  well  denied,  for  the  hus- 
band's equity  does  not  rest  upon  his  own  lack  of  property, 
but  upon  his  having  been  inequitably  deprived  of  a  right 
to  and  in  property  which  the  assumption  of  the  marriage 
obligation  gave  him.^ 

503.  Widow  With  Children  Conveying  Estate. 
— The  English  courts  regard  a  conveyance  by  a  widow 
with  children,  just  before  her  marriage,  fraudulent  much 
more  quickly  or  with  less  evidence  of  fraud  than  in  the 
case  of  a  woman  without  children.*  But  even  here  special 
circumstances  may  take  the  case  out  of  the  rule  making 
such  conveyance  fraudulent.  Thus  where  a  widow,  pre- 
viously to  her  marriage  with  a  second  husband,  assigned 

Busenbark,  33  Kan.  572;  Kelly  v.  McGrath,  70  Ala.  75;  M'Wade  v.  Brodhursl, 
34  L.  T.  N.  S.  924,  affirming  24  W.  R.  232. 

1  Thomas  v.  Williams,  Mose,  177. 

2  St.  George  v.  Wake,  I  My.  &  K.,  p.  C23  ;  Jordan  v.  Black,  Meigs,  142 ;  Thomas 
r.  Williams,  Mose,  177;  see  M'Wade  v.  Brodhurst,  34  L.  T.  N.  S.  924,  affirming 
24  W.  R.  232. 

3  Taylor  v.  Piigh,  1  Hare,  608  ;  Tisdale  v.  Bailey,  6  Ired.  Eq.  358. 
*Poulson  V.  Wellington,  2  P.  Wms.  533  ;  Green  v.  Goodall,  1  Coldw.  404. 


Gifts  in  Fraud  of  Marital  Rights.  489 

over  the  greatest  part  of  her  property  to  trustees  as  a  pro- 
vision for  the  chikh'en  of  her  former  marriage,  the  settle- 
ment was  supported  by  the  court,  on  the  ground  that  it 
was  made  for  a  proper  object — namely,  to  provide  for  the 
children  she  had  by  her  first  husband,  before  she  put  her- 
self and  them  under  the  power  of  a  second  husband.^  But 
in  all  such  instances,  in  order  to  not  render  the  convey- 
ance void,  she  must  act  without  a  fraudulent  intent  toward 
her  second  husband.^  Where  a  mother,  the  day  before  her 
marriage,  executed  a  deed  to  her  daughter  to  secure  a 
debt  due  her,  it  was  held  to  be  valid.^  In  America  it  is 
held  that  even  though  the  wife  only  intends  to  secure  her 
children,  yet  as  against  her  second  husband  the  convey- 
ance is  void,  and  especially  is  this  true  if  she  convey  all 
her  property.* 

504.  Consideration^  for  Conveyance,  Incumbrance 
OR  Debt. — If  there  was  a  valuable  consideration  for  the 
conveyance,  or  incumbrance  placed  upon  the  land  or 
property,  though  concealed  from  the  husband,  the  con- 
tract is  valid ;  and  this  is  also  true  of  a  debt  contracted.^ 
Thus  where  a  woman,  just  before  her  marriage,  secretly 

'Hunt  V.  Mathews,  1  Vern.  408;  .S.  C.  Eq.  Ca.  Ab.  59,  pi.  5;  Thomas  v.  Wil- 
liams, Mose,  177  ;  Jordan  v.  Black,  Meigs,  142. 

"^  England  v.  Downs,  2  Beav.  522 ;  King  v.  Cotton,  Mose,  259.  The  Master  of 
the  Rolls  very  much  doubted  the  decision  in  Hunt  v.  Mathews  on  this  point : 
Downes  v.  Jennings,  32  Beav.  290,  295.  See,  also,  Williams  v.  Carle,  2  Stock. 
(N.  J.)  Ch.  543;  Logan  v.  Simmons,  3  Ired.  Eq.  487. 

3  Fletcher  v.  Ashley,  6  Gratt.  332;  Gregory  v.  Winston,  23  Gratt.  102. 

*Goodson  2J.  Whitfield.  5  Ired.  Eq.  163;  Tisdale  v.  Bailey,  6  Ired.  Eq.  358 ; 
Terry  v.  Hopkins,  1  Hill  Ch.  (S.  C.)  1 ;  Ramsay  v.  Joyce,  1  McMull.  E(i.  236; 
Manes  v.  Dnrant,  2  Rich.  Eq.  404 ;  Jones  v.  Cole,  2  Bailey  L.  330  ;  McClure  v.  Mil- 
ler, 1  Biiiley  Eq.  107 ;  McAfee  v.  Ferguson.  9  B.  Mon.  475  ;  Wilson  v.  Daniel,  13  B. 
Mon.  348  ;  Leach  v.  Duvull,  8  Bush  201  ;  Bntler  v.  Butler,  21  Kan.  521  ;  S.  C.  30 
Am.  Rep.  441  (actual  fraud  mu<t  be  shown) ;  Hamilton  v.  Smith,  57  la.  15  (actual 
fraud  must  be  shown);  Baird  v.  .'^tearne,  15  Phila.  339;  S.  C.  39  Leg.  Int.  374 
(liusbmd  to  his  children,  a  fraud);  Pomeroy  v.  Pomeroy,  54  How.  223  (to  his 
mother). 

^Blanchet  v.  Foster,  2  Ves.  Sr.  264. 


490  Gifts. 

assigned  part  of  her  property  to  her  sister  the  court 
took  into  consideration  the  meritorious  object  of  the  con- 
veyance.^ The  absence  of  a  consideration  is  a  factor 
strongly  in  favor  of  the  husband.-  If  an  intended  wife 
secretly  conveys  property  to  ^aj  an  antecedent  debt,  on 
the  eve  of  her  marriage,  the  husband  cannot  set  it  aside 
until  he  has  paid  the  debt."^  But  a  conveyance  for  a  con- 
sideration, with  intent  to  defraud  the  husband,  is  void  be- 
cause of  the  actual  fraud  perpetrated.* 

505.  Innocent  Purchaser  from  Fradulent  Gran- 
tee.— A  purchaser  for  value,  without  notice  of  the  fraud 
perpetrated,  takes  a  valid  title,  and  cannot  be  disturbed 
in  it.^  It  is  otherwise  with  a  purchaser  having  knowl- 
edge of  the  fraud,*^  or  who  is  a  mere  donee.'^ 

506.  Husband    Seducing   His  Intended  Wife. — A 

husband  by  his  conduct  toward  his  intended  wife  may 
preclude  his  equity  to  have  a  secret  conveyance  made  by 
her  during  the  treaty  of  marriage  set  aside ;  such  as 
where  he  deprives  her  of  the  j^ower  of  retiring  from  the 
marriage,  or  of  stipulating  for  a  settlement.  Thus  where 
a  husband,  during  the  marriage  treaty,  seduced  his  wife, 
taking  her  to  his  own  house  and  living  with  her,  the  court 
refused  to  set  aside  a  secret  settlement  of  her  property 

^St.  George  v.  Wake,  1  My.  &  K.  610  ;  Fletcher  v  Ashley,  6  Gratt.  332;  Jones 
i\  Cole,  2  Bailey  L.  330;  McCkire  v.  Miller,  1  Bailey  Eq.  1U7;  Gregory  v.  Wins- 
ton, 23  Gratt.  102. 

^  Downes  v.  Jennings,  32  Beav.  290. 

^  Jones  V.  Cole,  2  Bailey  L.  380. 

^Cheshire  v.  Payne,  16  B.  Mon.  618,  630;  Freeman  v.  Hartman,  45  111.  57. 

^  Joyner  v.  Denny,  Busbee  Eq.  176. 

« Taylor  v.  Rickman,  Busbee  Eq.  278  ;  Kelly  v.  McGratt,  70  Ala.  75  ;  S.  C.  45 
Am.  Rep.  75  ;  Brewer  v.  Connell,  11  Humph.  500. 

^  Jenny  v.  Jenny,  24  Vt.  324.  Quare,  is  the  solicitor  of  the  intended  wife 
liable,  who  knows  of  the  fraudulent  intent  of  the  wife  and  draws  the  deed  to  en- 
able her  to  perpetrate  the  fraud?    See  Kelly  v.  Rogers,  1  Jur.  N.  S.  514. 


Crifts  in  Fraud  of  3Iarital  Rights.  491 

made  by  her  in  favor   of  herself  and  future   children, 
although  no  precedent  could  be  cited  on  the  point/ 

507.  Intended  Husband  Misrepresenting  His  Own 
Property  to  His  Intended  Wife. — The  fact  of  the  in- 
tended husband  misleading  his  wife  by  false  rej^resenta- 
tions  of  his  own  wealth  is  an  imj^ortant  factor  in  affording 
him  relief  as  against  her  secret  conveyance  of  her  own 
proj)erty.  A  husband  thus  deceiving  his  wife  does  not 
come  into  a  court  of  equity  with  immaculate  hands,  nor 
will  his  cries  of  woe  receive  as  careful  consideration  as 
they  otherwise  would.  It  of  itself  is  not  a  complete  de- 
fense, but  it  is  a  potent  factor  to  be  considered  with  other 
facts.^ 

508.  Acquiescence  by  Husband  After  the  Mar- 
riage.— Although  it  clearly  appears  that  the  husband 
acquired  a  knowledge  of  the  conveyance,  and  he  ac- 
quiesced in  anything  done  under  it,  yet  that  will  not 
purge  the  transaction  of  fraud  and  render  it  valid.  Still 
it  is  evidence  tending  to  show  a  communication  of  the 
fact  before  the  marriage.^ 

509.  Delay  in  Bringing  Suit  to  Set  Aside  Con- 
veyance.— In  some  of  the  cases  an  action  to  set  aside  the 
conveyance  was  brought  long  after  it  was  made  ;  but 
usually  in  these  instances  the  husband  has  remained  in 
ignorance  of  the  conveyance  until  shortly  before  suit 
brought — in  a  few  cases,  until  after  his  wife's  death. 
Where  a  husband  delayed  bringing  the  suit  two  years 

1  Taylor  v.  Pugh,  1  Hare,  60S;  Anonym  uis,  34  Ala  430. 

'^  Saunders  v.  Harris,  1  Head,  185 

^Lojran  V.  Simmons,  3  Ired.  Eq.  487;  Duican's  .Appeal,  43  Pa.  St  67  ;  Asluon 
V.  M'Doiipall,  5  Beav.  56  ;  S.  C.  6  .Tiir.  447  ;  11  L.  .T.  (N.  S.)  Ch.  447  ;  Saunders  v. 
Harris,  1  Head,  185.  Effect  of  confirmation  after  marriage,  see  Pratlier  r.  Burgess, 
5  Cranch  C.  C.  376. 


492  Gifts. 

and  a  lialf  after  obtaining  knowledge  of  the  fraud,  it  was 
held  that  his  laches  did  not  bar  his  right  to  a  recovery. 
Speaking  of  this  delay  the  court  said  :  "  It  is  not  sug- 
gested that  any  loss  of  evidence,  material  for  the  decision 
of  this  case,  has  occurred,  by  reason  of  this  delay,  and  in 
my  opinion  this  court  would  be  pushing  to  an  extreme 
length  the  principle  on  which  it  acts,  Avhere  delay  is  held 
to  deprive  a  plaintiff  of  the  relief  he  would  otherwise  be 
entitled  to,  if,  in  a  case  of  this  character  and  where  time 
does  not  place  the  j)arties  in  a  different  position,  it  were 
to  refuse  to  aid  the  husband."  ^  But  where  a  wife  trans- 
ferred stock,  and  the  husband  married  her  in  ignorance 
of  the  transfer  but  soon  after  found  it  out,  yet  delayed 
until  after  her  death  to  bring  suit,  which  occurred  seven- 
teen years  after  the  marriage,  relief  was  denied.^  Yet 
where  the  wife  the  day  before  the  marriage  transferred 
all  her  property  to  a  distant  relation,  which  was  carefully 
concealed  from  the  husband  during  his  life,  which  was  a 
period  of  only  four  years ;  and  during  that  whole  time  he 
was  permitted  to  use  and  treat  the  property  as  his  own, 
it  was  held  that  the  conveyance  could  be  set  aside,  even 
though  he  had  heard  a  rumor  that  his  intended  wife 
intended  to  convey  the  property,  which  he  did  not  be- 
lieve.^ 

510.  Action  by  Personal  Representatives  of  Hus- 
band— Heirs. — The  right  to  set  aside  such  a  fraudulent 
conveyance  seems  to  be  personal  to  the  husband,  and  dies 
with  him.  Thus  where  an  intended  wife  conveyed  bonds 
and  stock  in  trust  for  herself,  married,  and  the  husband 

'  Dowries  v.  Jennings,  32  Bear.  :190 ;  Williams  v.  Carle,  2  Stock.  (N.  J.)  Ch. 
54'.;  Duncan's  Appeal,  43  Pa.  St.  67. 

=> Loader  v.  Clarke.  2  Mac.  &  G   382. 

^  Spencer  v.  Spencer,  3  Jones  Eq.  404  ;  Poston  v.  Gi!l<^ppie,  5  Jones  Eq.  258. 
But  see  Hamilton  v.  Snaith,  57  la   15,  as  to  a  rumor  unbelieved. 


Gifts  in  Fraud  of  Alarital  Rights.  493 

died  in  ignorance  of  lier  ownership  of  the  bonds  and 
stock  ;  and  then  the  wife  brought  suit  against  the  trustees 
to  compel  a  reconveyance  to  her,  and  succeeded,  it  was 
held  that  the  heirs  of  the  husband  could  not  then  main- 
tain an  action  against  her  to  compel  a  conveyance  to  them.^ 
But  in  a  South  Carolina  case  the  executor  of  the  husband 
was  allowed  to  maintain  the  action,  the  wife  surviving  the 
husband.^ 

511.  Husband's  Ceeditoes  Attacking  Conveyance. 
— The  creditors  of  the  husband  can]iot  attack  the  convey- 
ance, although  he  owed  them  at  the  time  of  the  marriage, 
and  he  was  then  insolvent  and  consented  to  the  convey- 
ance. Such  a  conveyance  is  not  within  the  statute  of 
frauds,  for  he  is  not  the  grantor  and  it  is  only  to  the 
latter  that  it  applies.^ 

512.  Heir  of  Wife  Attacking  Husband's  Fraudu- 
lent Conveyance. — In  Delaware  it  is  held  that  an  heir 
of  the  wife  cannot  attack  the  husband's  secret  conveyance 
made  on  the  eve  of  their  marriage ;  for  the  reason  that 
the  conveyance  is  only  a  constructive  fraud,  and  her  heirs 
have  not  the  equity  she  possessed  to  have  the  deed  set 
aside.^ 

513.  The  Decree. — In  setting  aside  the  conveyance 
the  court  will  direct  a  proper  provision  for  the  wife, 
although  the  suit  be  instituted  by  the  husband,  to  recover 
her  property,  which  he  has  not  yet  reduced  to  possession.^ 

^Grazebrook  v.  Percival,  14  Jur.  (O.  S.)  1103:  Chandler  v.  HoUingsworth,  3 
Del.  Ch.  99 ;  S.C.  17  Amer.  L.  Reg.  319. 

*  Spencer  v.  Spencer,  3  Jones  Eq.  404. 

^Land  v.  Jefleries,  5  Rand.  211 ;  Perryclear  v.  Jacobs,  2  Hill  Ch.  (S.  C.)  504. 
Contra,  Westermnn  v.  Weslerman,  25  Ohio  St.  500. 

^Chandler  v.  HoUingsworth,  3  Del.  Cli.  99;  S.  C.  17  Amer.  L.  Reg.  319. 

5  Tucker?;.  Andrews,  13  Me.  124;  Kenny  r.  Udall,  5  Johas.  Ch.  4G4.  The 
court  of  South  Carolina  declined  to  follow  the  rule  of  the  Maine  case :  Tisdale  v. 
Bailey,  6  Ired.  Eq.  358. 


494  Gifts, 

But  in  the  great  majority  of  instances  the  judgment  has 
been  simply  an  annulling  of  the  fraudulent  conveyance, 
or  a  decree  compelling  the  fraudulent  grantee  to  reconvey 
the  property  to  the  wife,  in  the  case  of  personalty.  No 
doubt  an  accounting  can  be  decreed  of  the  rents  and 
j^rofits  received  by  the  wife's  grantee.  In  the  case  of 
j)ersonal  property  a  judgment  in  conversion,  if  the  proper 
demand  has  been  made,  for  the  value  of  the  property 
would  not  be  improper. 

514.  HusBAXD  Secretly  Conveying  His  PROPErtTY. 
— In  a  South  Carolina  case,  in  a  dictum,  it  is  said  that  the 
intended  husband  can  no  more  convey  his  property  with- 
out his  intended  wife's  consent  than  she  can  convey  her 
property  without  his  ;  that  both  are  equally  bound.^  If 
the  intended  husband  secretly  conveys  his  property,  even 
to  his  children,  he  will  be  bound,  but  they  take  it  subject 
to  her  rights  in  case  she  survive  him ;  ^  and  before  his 
death  she  may  maintain  an  action  to  have  the  conveyance 
declared  void  so  far  as  it  may  deprive  her  of  dower  in  the 
lands  in  case  she  survive  him,  but  no  farther.^  But  where 
the  husband,  a  few  days  before  his  marriage,  conveyed  two 
farms  to  his  children  which  he  represented  to  his  wife  that 
he  owned,  and  she  remained  in  ignorance  of  the  conveyance 
until  after  his  death,  which  took  place  several  years  after 
his  marriage,  and  during  the  marriage  he  made  ample  pro- 
vision for  her,  and  for  her  two  children  by  a  former  hus- 
band, and  no  evidence  Avas  given  of  the  amount  of  prop- 
erty he  died  seized  of,  the  court  refused  to  set  aside  the 

'"  Poston  V.  Gillespie,  5  Jones  Eq.  258. 

2  Leach  v.  Diivall,  8  Bush.  201 ;  Petty  r.  Webb,  G  B.  Mon.  468 ;  Gaines  v. 
Gaines,  9  B.  i\Ion.  295  ;  Petty  v.  Montague,  7  B.  Mon.  55  ;  Gainor  v.  Gainer,  26 
la.  ;^37  ;  Chandler  v  Hc.llingsworth,  3  Del.  Cli.  99 ;  S.  C.  17  Am.  L.  Eeg.  319. 

*  Petty  V.  Petty,  4  B.  Mon.  215;  S.  C.  39  Am.  Dec.  501 ;  Swaine  v.  Ferine,  5 
Johns.  Ch.  482 ;  S.  C.  9  Am.  Dec.  318. 


Gifts  in  Fraud  of  Ifarital  Rights.  495 

conveyance  at  her  suit,  because  no  actual  fraud  was  sliown.^ 
Yet  where  a  husband  permitted,  previous  to  his  marriage, 
with  a  view  of  defeating  the  marital  rights  of  his  wife, 
fraudulent  judgments  to  be  taken  against  him,  it  w^as  held 
that  his  wife,  even  during  coverture,  could  maintain  an 
action  to  have  them  declared  a  nullity  so  far  as  they 
affected  her  inchoate  interests  in  her  husband's  lands."^ 
The  same  was  held  true  of  a  mortgage;^ 

515.  When  Wife  May  Sue — Right  of  Action. — 
The  wife  may  bring  an  action  to  protect  her  contingent 
or  inchoate  interest  in  her  husband's  real  estate  before 
he  dies;  she  is  not  compelled  to  wait  until  his  death.  This 
is  abundantly  established  by  authority.*  At  his  death  she 
may  bring  her  action  for  dower  the  same  as  if  no  convey- 
ance had  ever  been  made,''  or  proceed  in  equity  to  secure 
her  rights.     So  a  husband  may  bring  the  action  during 

1  Butler  V.  Butler,  21  Kan.  521 ;  S.  C.  30  Am.  Rep.  441 ;  Hamilton  v.  Smith,  57 
la.  15. 

2  Busenbark  v.  Busenbark,  33  Kan.  572 ;  Thayer  v.  Thaver,  14  Vt.  107 ;  S.  C. 
39  Am.  Dec.  211 ;  Buzick  v.  Buzick,  44  la.  259 ;  Beck  v.  Beck,  64  la.  155 ;  {contra, 
Stewart  v.  Stewart,  5  Conn.  317);  Holmes  v.  Holme-:,  3  Paige,  363;  Baird  v. 
Stearne,  15  Phila.  339 ;  S.  C.  39  Leg.  Int.  374 ;  Pomeroy  v.  Pomeroy,  54  How. 
Pr.  228;  Baker  v.  Chase,  6  Hill,  4S2  (not  void  at  law) ;  Youngs  v.  Carter,  50  How. 
Pr.  410;  S.  C.  1  Abb.  N.  C.  136;  10  Hun,  194  (to  his  daughters). 

^  Kelly  V.  McGrath,  70  Ala.  75.  Generally,  Reynolds  v.  Vance,  1  Heisk.  344 
(actual  fraud  necessary) ;  Killinger  v.  Reidenhauer,  6  S.  &  R.  531  (a  mortgage) ; 
Crecelius  u  Horst,  4  Mo.  App.  419  (a  husband,  after  marriage,  purchased  land, 
and  had  it  conveyed  to  his  daughter  in  order  to  defeat  his  wife's  dower ;  void: 
Jiggitts  V.  Jiggitts,  40  Miss.  718;  Babcock  v.  Babcock,  53  How.  Pr.  97;  Drury  v. 
Drury,  Wilmot's  Opinions,  177  ;  S.  C  4  Bro.  Ch.  506,  note.  Lord  Hardwicke  lield 
"that  if  a  man.  bef  ire  marriage,  conveys  his  estate  privately,  without  the  knowl- 
edge of  his  wife,  to  trustees,  in  trust  for  himself  and  his  heirs  in  fee,  that  will  pre- 
vent dower:"  Swanneck  v.  Lyford,  Co.  Litt.  lOS,  n.  1  ;  Banks  v.  Sutton,  2  P.  Wms. 
700.  In  Virginia  it  is  lield  that  proof  of  the  conveyance  is  not  snfBcient  to  shew 
a  fraud;  there  must  be  an  actual  fraud  :  Gregory  v.  Winston,  23  Gratt.  102. 

*  Babcock  v.  Babcock,  53  How.  Pr.  97;  Young  v.  Carter,  10  Hun,  194;  S.  C.  1 
Abb.  N.  C.  136;  50  How.  Pr.  410;  Petty  v.  Petty,  4  B.  Mon.  215;  S.  C  39  Am. 
Dec.  501 ;  Mills  v.  Von  Voorhies,  20  N.  Y.  412;  Simar  v.  Canaday,  53  N.  Y.  298. 

^  Baker  v.  Chase,  1  Hill,  482  ;  Gilson  v.  Hutchison,  120  Ma«s.  27;  Youngs  v. 
Carter,  supra;  Brown  v.  Bronson,  35  Mich.  415 ;  Jiggitts  v.  Jiggitts,  40  Miss.  718. 


496  G'tfts. 

her  lifetime,  for  lie  has,  usually,  a  present  interest  in  the 
rents  and  profits  of  her  lands.  And  the  same  is  true, 
usually,  of  her  personal  proj^erty. 

ol6.  Personal  Property  of  Husband. — There  is 
considerable  conflict  upon  the  question  of  a  fraudulent 
conveyance  by  the  husband  of  his  personal  jn'operty, 
with  the  intent  of  defeating  the  claim  of  his  wife  at  his 
death.  A  number  of  cases  have  already  been  cited  which 
hold  such  a  conveyance,  made  before  the  marriage,  void ; 
and  there  are  also  a  number  which  hold  that  it  is  not  void. 
Another  line  of  cases  even  hold  that  a  conveyance  of  such 
property  by  the  husband  made  during  coverture  with  the 
intent  to  defeat  the  contingent  interest  of  the  wife  is  not 
void,  unless  the  transfer  be  a  mere  device  or  contrivance 
by  which  the  husband,  not  parting  with  the  absolute  do- 
minion over  the  property  during  his  life,  seeks  to  dej^rive 
his  widow  of  her  share  of  his  personalty  at  his  death.^ 

517.  Married  AVomex's  Acts. — It  is  always  a  matter 
of  importance  how  far  the  recent  married  women's  acts 
have  changed  the  rule  with  respect  to  secret  conveyances, 
such  as  we  have  been  discussing.  The  terms  of  a  particu- 
lar statute  of  this  kind  must  be  closely  scrutinized  before 
a  conclusion  can  be  drawn.  Usually  these  statutes  do 
not  deprive  the  husband  of  a  contingent  or  inchoate 
interest  in  his  wife's  lands  if  he  survive  her ;  and,  while 
they  usually  give  her  the  right  to  the  rents  and  profits 

1  Dunnock  v.  Dunnock,  3  Md.  Ch.  140;  Hays  v.  Henry,  1  Md.  CIi.  337;  Cran- 
son  V.  Cranson,  4  Mich.  230;  Holmes  v.  Holmes,  3  Paige,  363;  Richards  v.  Rich- 
ards, 11  Humph.  429  ;  Petty  v.  Petty,  4  B.  Mon.  215 ;  S.  C.  39  Amer.  Dec  501 ; 
McGee  r.  McGee,  4  Ired.  L.  105;  Littiet-m  v.  Littleton,  1  Dev.  &  B.  327  ;  Davis 
V.  Davts,  5  Mo.  183 ;  Stone  v.  Stone,  18  Mo.  389  ;  Tucker  v.  Tucker,  29  Mo.  350 ; 
S.  C.  32  Mo.  464;  {co-ntra,  Cameron  v.  Cameron,  10  Sm.  &  M.  394;  Lightfoot  v. 
Colgin,  5  Munf.  42) ;  Chandler  v.  Hollingsworth,  3  Del.  Ch.  99 ;  S.  C.  17  Amer.  L. 
Eeg.  319.  {Contra,  as  to  community  property);  Smith  v.  Smith,  12  Cal.  216; 
Lord  V.  Hough,  43  Cal.  581. 


Gifts  ill  Fraud  of  JIarital  Eights.  497 

of  her  own  land,  they  do  not  empower  her  to  encumber 
or  convey  it  without  his  consent.  The  possibility,  there- 
fore, of  his  acquiring  an  interest  in  her  lands  that  will 
become  of  value  may  be  a  subject  of  some  consideration 
when  he  enters  upon  a  marriage  treaty  with  her.  AYhere 
a  statute  gives  her  the  absolute  control  over  her  property, 
with  the  right  to  convey  and  dispose  of  it  as  she  sees  fit, 
without  his  concurrence,  it  would  seem  to  logically  follow 
that  the  husband  could  not  object  to  a  secret  conveyance 
made  by  her  on  the  eve  of  their  marriage  ;  for  if  she  may, 
without  his  consent,  convey  or  encumber  the  jDroperty 
openly,  even  though  she  be  influenced  by  a  desire  to 
defeat  any  possibility  of  his  obtaining  an  interest  in  her 
property  if  he  should  survive  her,  after  the  marriage, 
there  is  no  reason  why  she  may  not  make  a  valid  and 
secret  conversance  or  encumbrance  before  their  marriage. 
And  so  the  same  is  true  of  her  personal  property,  where 
she  is  the  absolute  owner  after  the  marrias-e.  At  common 
law  the  husband  was  liable  for  his  wife's  debts  contracted 
before  their  marriage,  but  these  statutes  usually  release 
him,  or  hold  him  liable  only  to  the  amount  of  pro^^erty 
he  himself  receives  with  her.  If  lie  receive  nothing,  then 
he  is  not  liable.  In  all  these  instances,  as  we  have  said  be- 
fore, it  would  seem  to  logically  follow  that  her  secret  con- 
veyance is  not  fraudulent.^  These  views,  however,  have  not 
met  with  the  approval,  apparently,  of  the  Supreme  Court 
of  North  Carolina ;  for  it  is  there  said,  since  the  Constitu- 
tion of  1868  was  adopted  in  that  State,  that  a  husband  was 
under  an  obligation  to  support  his  wife  and  her  children 
by  him,  "  and  for  that  purpose  is  entitled  to  her  services, 

^  This  was  the  view  of  Mr.  Justice  Brewer  in  Butler  v.  Butler,  21  Kan.  521, 
thoueh  he  does  not  decide  the  point ;  and  tliat,  too,  even  where  the  husband  was 
entitled  to  one-half  of  the  wife's  property  if  he  survived  her,  which  she  owned  at 
her  death  ;  and  vice  versa.  See,  also,  Green  v.  Green,  34  Kan.  740  ;  and  Chief 
Justice  Horton's  remarks  in  State  v.  Walker,  36  Kan.  297,  310,  311. 
32 


498  Gifts, 

and  to  contribution  from  the  profits  of  her  estate.  .  .  . 
The  plaintiff  was  surprised  by  the  fact  that  his  wife  had 
been  induced  to  give  away  all  the  estate  she  owned,  and 
to  Avhich  he  with  reason  looked  for  aid  in  supporting  her. 
He  was  deceived,  and  the  question  is  was  he  defrauded 
of  any  right  to  which  he  was  entitled  as  husband.  We 
think  he  was.  The  marriage  act  authorizes  a  wife  to 
make  contracts  charging  her  real  and  personal  estate  for 
her  necessary  personal  expenses,  or  for  the  support  of  her 
family.  So  the  plaintiff  had  in  legal  contemplation  a  right 
to  look  to  this  lot  as  a  source  which  would  enable  his  wife 
to  contribute  to  her  necessary  personal  expenses,  and  for 
the  support  of  the  family,  and  was  not  only  deceived,  but 
was  defrauded  by  the  secret  conveyance  made  the  day  before 
the  marriage."^  So  in  Ohio  a  somewhat  similar  view 
was  taken.  A  statute  provided  that  **  in  any  action 
against  the  husband  and  wife  upon  any  case  existing 
against  her  at  their  marriage,  or  upon  any  tort  committed 
by  her  during  coverture,  or  upon  any  contract  made  by 
her  concerning  her  separate  property  .  .  .  the  separate 
property  of  the  wife  shall  be  also  liable  to  be  taken  for 
any  judgment  rendered  thereon."  Under  this  statute  it 
was  held  that  a  secret  conveyance  by  her  of  her  property 
on  the  eve  of  her  marriage  was  void  as  to  creditors  of 
both  of  them.^  A  similar  result  was  reached  in  Vir- 
ginia.^ In  a  Pennsylvania  case  it  was  said  :  "  Nor  does 
our  married  women's  act  of  1848  at  all  affect  the  ques- 
tion. It  prevents  the  marriage  from  o^^erating  as  a  trans- 
fer of  any  of  the  wife's  property  to  the  husband,  and 
saves  it  for  herself     The  plaintiff  had,  therefore,  a  right 

^  This  case  was,  however,  decided  against  the  husband  for  the  renson  that  he 
knew  of  the  conveyance  the  day  before  the  marriage  :  Baker  v.  Jordnn,  73  N.  C. 
145. 

^  Westerman  v.  Westerman,  2o  Ohio  St.  500 ;  Alexander  v  Morgan,  31  Ohio  546. 

3  Powell  V.  Manson,  22  Gratt,  177. 


Gifts  in  Fraud  of  3Iarital  Rights.  499 

to  suppose  that  he  was  marrying  her  with  all  her  legal 
power  over  her  estate ;  whereas,  by  this  arrangement,  it 
was  secretly  slipped  into  the  hands  of  trustees,  and  out  of 
her  control,  just  before  the  marriage  was  consummated. 
This  is  not  just  or  equitable  treatment  of  the  husband.  A 
fraud  no  greater  than  this  would  avoid  any  other  contract 
than  that  of  marriage  ;  but,  as  this  cannot  be  avoided, 
equity  avoids  the  contracts  that  are  in  fraud  of  it."  ^ 

^Duncan's  Appeal,  43  Pa.  St.  67.  See  Freeman  v.  Hartman,  45  111.  57. 


1 


CHAPTER  XIX. 


ORIGIN    AND    ESSENTIALS   OF   ADVANCEMENTS. 


518.  Limit  of  Discussion.  537. 

619.  Confusion  in  the  Use  of  the  Terms    538. 

Ademption  and  Advancement. 

520.  Early  English  Law  of  Personal  Ef-     539. 

fects  of  Deceased  Persons.  640. 

521.  English  Statute  of  Distribution.  541. 

522.  Resemblance  to  Old  English  and  to 

Roman  Law. 

523.  English    Statute    of    Distribution     542. 

Common  Law  in  America. 
624.  Equality  Basis  of  Statute  and  De-     543. 
cisions. 

525.  Definition  of  Advancements.  544. 

526.  Differs  from  "  Advances."  545. 

627.  "  Advancement  "         Distinguished 

from  a  "  Gift "  or  "  Debt."  540. 

628.  Distinguished    from    an   "  Ademp- 

tion." 
529.  Difference  Between  Ademption  and     547. 
"  Satisfaction."  548. 

630.  Revocation  of  Advancement.  549. 

631.  Changing  Gift  to  Advancement. 

532.  Changing  Advancement  to  Gift.  550. 

533.  Changing    Debt    to    an    Advance- 

ment. 551. 

534.  Changing  Advancement  to  a  Debt. 

535.  Assent  of   Donee  to  an  Advance- 

ment. 552. 

536.  Donee     Refusing    to    Accept    Ad- 

vancement. 


Intention  of  Donor  Controls. 

Statute  Changing  Rule  as  to  In- 
tention. 

Relation  of  Donor  to  Donee. 

Gift  to  Grandchildren. 

Advancement  to  Parent  wlien 
Grandparent  Leave  Surviving 
Him  Only  Grandchildren. 

Payment  to  Son-in-law  as  an  Ad- 
vancement to  Daughter. 

Mother's  Gift  to  Child  as  an  Ad- 
vancement. 

Gift  to  Stranger. 

Gift  Must  be  Out  of  Donor's  Own 
Property. 

Gift  Must  be  Perfected  in  Life- 
time of  Donor — Rents  and 
Profits  of  Real  Estate. 

Donor  Must  Die  Intestate. 

Partial  Intestacy. 

Will  E.x:ecuted  After  Advance- 
ment Made. 

To  What  Property  the  Law  of 
Advancement  Applies. 

Heir  Releasing  to  Ancestor  His 
Prospective  Interest  in  His 
Estate. 

Purchaser  of  Heir's  Interest 
Takes  Subject  to  Advance- 
ment Made. 


518.  Limit  of  Discussion. — The  author  in  the  discus- 
sion of  the  subject  of  "Gifts"  has  excluded  the  subject  of 
Gifts  by  Will,  and  limited  the  consideration  of  the  sub- 
ject to  Gifts  Inter  Vivos  and  3Iortis  Causa.     In  view  of 
500 


I 


Origin  and  Essentials  of  Advancements.        501 

this  fact  it  lias  been  thought  best  to  exchule  any  discus- 
sion of  the  subject  of  Ademption,  and  limit  the  following 
23ages  to  that  of  Advancement.  The  subject  of  Ademp- 
tions, while  in  many  of  its  j)rinciples  clearly  connected 
with  that  of  Advancements,  and  w^hile  the  cases  of 
ademjDtions,  and  illustrations  used  in  them  are  often  au- 
thority, and  serve  to  illustrate  cases  of  advancements,  yet 
it  is  inherently  connected  with  the  subject  of  wills  ;  for 
in  each  and  every  instance  of  a  controversy  concerning 
ademptions  a  will  is  involved,  while  in  advancements  a 
question  concerning  wills  seldom  arises.  Therefore,  a 
^practitioner,  in  his  search  for  a  discussion  of  the  subject 
of  Ademptions  would  almost  invariably  turn  aside  from 
a  work  bearing  the  title  set  on  the  title-page  of 
this  work,  not  expecting  to  find  it  discussed  in  this 
connection. 

519.  Confusion  in  the  Use  of  the  Terms  Ademp- 
tion AND  Advancement. — Much  confusion  has  arisen 
in  the  decided  cases,  and  even  in  text-books,  by 
the  distinction  between  ademptions  and  advancements 
not  being  clearly  borne  in  mind,  and  also  by  in- 
accurate distinctions,  or  no  distinctions  at  all  being 
observed  as  to  the  difference  between  these  two  terms 
and  that  of  satisfaction.  In  many  cases  instances 
of  ademption  are  spoken  of,  and  often  treated,  as 
instances  of  advancements ;  and  to  add  to  the  con- 
fusion the  Legislature  has  more  often  than  otherwise 
utterly  failetl  to  notice  the  distinction  inherently  exist- 
ing between  these  two  terms. 

520.  Early  English  Law  of  Personal  Effects  of 
Deceased  Persons. — In  very  early  times  of  England  the 
king,  as  parens  patron,  was  entitled  to  take  possession  of 
the  goods  of  an  intestate,  and  he  frequently  delegated  this 


502  Advancements. 

prerogative  to  tlie  lords  of  manors  and  others,  and  they 
thus  acquired  what  was  afterward  termed  a  proscriptive 
right  to  grant  probate  of  wills,  or  administration  of  the 
effects  of  their  suitors  and  tenants.  Subsequently  the 
king,  except  in  these  cases  of  proscriptive  right,  trans- 
ferred this  power  or  usage  to  the  heads  of  the  Church, 
who  were  thought  to  have  more  tender  consciences  than 
laymen,  and  to  be  better  able  to  judge  as  to  "  Avhat  things 
would  conduce  to  the  benefit  of  the  soul  of  the  deceased." 
These  "  ordinaries,"  as  they  were  termed,  were  accountable 
to  no  one,  had  unlimited  power  over  the  intestate's  prop- 
erty, and  they  were  held  to  a  breach  of  confidence  only 
when  they  failed  to  dispose  of  the  proceeds  of  such  property 
to  pious  uses — namely,  for  the  good  of  the  intestate's  soul. 
Great  abuses  necessarily  arose,  and  after  giving  to  the  wife 
and  children  their  two-thirds,  the  reverend  gentlemen  often 
appropriated  the  remaining  third  to  their  own  personal 
gratification,  without  even  paying  the  debts  of  the  de- 
ceased.^ In  1285  Parliament  passed  an  act  declaring  that 
the  ordinary  "  from  henceforth  shall  be  bound  to  answer 
for  the  debts  as  far  forth  as  the  goods  of  the  dead  will  ex- 
tend," just  as  executors  were  under  a  will.'^  This  statute 
simply  had  the  effect  to  reduce  the  amount  the  ordinary 
would  have  otherwise  received ;  for,  having  paid  the  de- 
ceased's debts,  he  kept  what  was  left.  Seventy  years  later 
the  Parliament  provided  that  "  where  a  man  dieth  intes- 
tate, the  ordinaries  shall  depute  the  next  and  most  lawful 
friends  of  the  dead  person  to  administer  his  goods,"  who 
were  to  be  accountable  to  the  ordinaries,  and  to  be  in  the 

1 2  Black.  Com.  494;  1  Wras.  Exrs.  401 ;  Graysbook  v.  Fox,  Plowd.  277  ;  Hen- 
sloe's  Case,  9  Rep.  39  a. 

2 13  Edw.  I,  c.  19 ;  2  Black.  Com.  495 ;  Palmer  v.  Allcock,  3  Mod.  59.  It  was 
decided,  however,  that  this  statute  simply  declared  the  rule  at  common  law : 
Snelling's  Case,  5  Co.  Rep.  82  b.  See,  also,  Hensloe's  Case,  9  Co.  Rep.  39  b ;  Snel- 
lings  V.  Norton,  Cro.  Eliz.  409,  and  Com.  Dig.  Administrator  A. 


Origin  and  Essentlah  of  xidvancements.        503 

same  position  as  to  suing  and  being  sued  as  executors.^  A 
subsequent  statute  provided  that  administration  should  be 
granted  to  the  widow  or  next  of  kin  of  the  intestate,  or 
both,  as  the  ordinary  should  think  fit.^  The  result  was 
that  the  administrator,  instead  of  the  ordinary,  after  the 
payment  of  the  debts  and  paying  the  widow  and  the  in- 
testate's children  their  two-thirds,  appropriated  the  re- 
mainder to  his  own  personal  satisfaction.  But  now  as  the 
ordinary  was  de^^rived  of  the  power  to  appropriate  the 
remnant  of  the  estate  to  his  own  pious  use,  he  was  seized 
with  a  desire  to  prevent  any  one  else  except  the  widow 
and  children  from  so  doing,  and  exacted  of  the  adminis- 
trator a  bond  that  he  would  faithfully  account  to  such 
widow  and  children  for  the  remainder  left  after  pay- 
ing the  debts  of  the  intestate ;  but  the  common-law 
courts  adjudged  these  bonds  void.^  These  several 
statutes  and  unjust  practices  paved  the  way  for  the 
celebrated  "  Statute  of  Distribution,"  *  discussed  in  the 
next  section. 

521.  ENGLISH  Statute  of  Distribution. — This  statute 
is  entitled  "  An  Act  for  the  better  settling  of  intestates' 
estates,"  and  is  given  in  full  in  the  Appendix.  It 
authorized  any  officer  having  the  power  to  grant  let- 
ters of  administration  to  exact  a  bond  from  the  adminis- 
trator, conditioned  that  he  will  make  a  fiiithful  report  of 
all  property  that  may  come  into  his  hands,  and  will  deliver 

^  '•  Tliis  "  says  Blackstone,  "  is  the  original  of  administrators,  as  they  at  present 
stand  ;  who  are  only  the  officers  of  the  ordinary,  appointed  hy  him  in  pursuance 
of  this  statute,  which  singles  out  tlie  next  and  most  lawful  friend  of  the  intestate  ; 
who  is  interpreted  to  be  the  next  of  blood  that  is  under  no  legal  disabilities:"  2 
Black.  Com.  496.     The  act  referred  to  is  31  Ed.  Ill,  Stat.  I,  c.  11. 

2  21  Hen.  VIII,  c.  5. 

3  Edwards  v.  Freeman,  2  P.  Wms.  441 ;  Hughes  v.  Hughes,  1  Lev.  233 ;  S.  C. 
C;irter,  125.     See  2  Black.  Com.  515. 

*  22  &  23  Car.  11,  c.  10. 


504  Advancements. 

and  2)ay  to  sucli  j)ersons  as  tlie  court  or  judge  may  decree 
"pursuant  to  the  true  intent  and  meaning  of  this  act;" 
and  directed  the  courts  to  "  make  just  and  equal  distribu- 
tion of  what  remaineth  clear  (after  all  debts,  funeral  and 
just  expenses  of  every  sort  first  allowed  -and  deducted) , 
amongst  the  wife  and  children,  or  children's  children,  if 
any  such  be,  or  otherwise  to  the  next  of  kindred  to  the 
dead  joerson  in  equal  degree,  or  legally  representing  their 
stocks  ^ro  suo  cuiquejure,  according  to  the  laws  in  such 
cases,  and  the  rules  and  limitations  hereafter  set  down."  ^ 
After  providing  that  it  shall  not  set  aside  the  custom  ob- 
served in  the  City  of  London  or  within  the  Province  of 
York,^  the  statute  provides  that  so  much  of  the  estate  as 
remains  after  paying  the  debts,  funeral  expenses,  and  ex- 
penses of  administration,  the  widow  shall  receive  one- 
third  part,  "  and  all  the  residue  "  shall  be  divided  "  by 
equal  portions,  to  and  amongst  the  children  of  snch  per- 
sons dying  intestate,  and  such  persons  as  legally  represent 
such  children,  in  case  any  of  the  said  children  be  then 
dead,  other  than  such  child  or  children  (not  being  lieirs- 
at-law)  who  shall  have  any  estate  by  the  settlement  of  the 
intestate,  or  shall  be  advanced  by  the  intestate  in  his  life- 
time, by  portion  or  portions  equal  to  the  share  which  shall 
by  such  distribution  be  allotted  to  the  other  children  to 
whom  such  distribution  is  to  be  made :  and  in  case  any 
child,  other  than  the  heir-at-law,  who  shall  have  any 
estate  by  settlement  from  the  said  intestate,  or  shall  be 
advanced  by  the  said  intestate  in  his  lifetime  by  portion 
not  equal  to  the  share  which  will  be  due  to  the  other 
children  by  such  distribution  aforesaid ;  then  so  much  of 
the  surplusage  of  the  estate  of  such  intestate,  to  be  dis- 
tributed to  such  child  or  children  as  shall  have  any  land 

1  Sects.  1,  2,  and  3. 

2  Sect.  4. 


Origin  and  Essentials  of  Advancements.        505 

by  settlement  from  the  intestate,  or  were  advanced  in  the 
lifetime  of  the  intestate,  as  shall  make  the  estate  of  all 
the  said  children  to  be  equal  as  near  as  can  be  esti- 
mated ;  but  the  heir-at  law,  notwithstanding  any  land 
that  he  shall  have  by  descent  or  otherwise  from  the  intes- 
tate, is  to  have  an  equal  portion  in  the  distribution  with 
the  rest  of  the  children,  without  any  consideration  of  the 
value  of  the  land  which  he  hath  by  descent,  or  otherwise 
from  the  intestate."  ^  The  next  section  provided  that  if 
"  there  be  no  wife,  then  all  the  said  estate  to  be  dis- 
tributed equally  to  and  among  the  children ;  and  in  case 
there  be  no  child,  then  to  the  next  of  kindred  in  equal 
degree  of  or  unto  the  intestate,  and  their  legal  representa- 
tives as  aforesaid,  and  in  no  other  manner  whatsoever."  It 
also  provided  that  the  distribution  be  postponed  until  one 
year  after  the  intestate's  death,  and  then  only  on  condi- 
tion that  the  distributees  give  a  bond  to  refund  a  sufficient 
sum  to  pay  any  of  the  debts  of  the  intestate  coming  to 
light  thereafter.^ 

522.  Resemblance  to  Old  English  and  to  Roman 
Law. — This  statute  bears  a  somewhat  near  resemblance 
to  the  ancient  English  law,  de  rationbli  part  bonarum,  so 
far  as  the  equality  of  distribution  is  concerned,  which  has 
been  claimed  by  some  authorities  to  be  unusually  appli- 
cable to  England,^  while  others  doubt  if  it  was  more  than 
a  custom  peculiar  to  some  localities.^  By  that  law  a 
man's  goods  were  divided  into  three  equal  parts,  one  of 

1  Sect.  5. 

2 Sect.  7.  This  statute,  after  two  extensions,  was  made  perpeiual  by  I  Jac.  1, 
c.  17,  f.  5.  Of  this  statute  it  lias  been  observed  that  two  objects  were  in  the  view 
of  the  legislator,  one  that  the  residue  shall  be  forthcoming,  and  the  other  that  it 
shall  be  equally  divided.  By  Bayley,  B.,  in  The  Archbishop  of  Canterbury  v.  Kob- 
ertson,  1  Cr.  &  M.  690,  705.  Lord  Hardwicke  said  that  ihe  statute  was  very  inac- 
curately penned  :  Stanley  v.  Stanley,  1  Atk.  457. 

3  Black.  Com.  492. 

*  Co.  Litt.  176  b. 


506  Advancements. 

wliicli  went  to  lils  lieirs,  another  to  liis  wife,  and  the  re- 
maining third  was  at  his  own  disposaL  If  he  had  no 
wife,  one  moiety  went  to  his  chihlren,  and  the  remaining 
moiety  he  coukl  dispose  of  as  he  wished.^  This  statute 
also  bears  some  resemblance  to  the  Koman  law  of  succes- 
sion ab  intestatio,  and  because  the  act  was  penned  by 
an  eminent  civilian,^  the  notion  at  times  has  prevailed 
that  Parliament  copied  it  from  the  Koman  Praetor.  It 
is,  however,  but  little  more  than  a  restoration,  with  some 
refinements  and  regulations,  of  the  old  constitutional 
English  law  which  prevailed  as  an  established  right  and 
custom  from  the  time  of  Cnut  downwards,  many  centuries 
before  Justinian's  laws  were  known  or  heard  of  in  the 
western  part  of  Europe.^ 

1 1  Wms.  Exrs.  1,  2. 

^  Sir  Walter  Walker,  see  R.  v.  Raines,  1  Ld.  Raym.,  p.  574,  by  Lord  Holt. 

^2  Bl.  Com.  516.  On  the  Roman  succession  ah  intestxtio,  see  Amos'  Roman 
Civil  Law,  p.  305;  Hunter's  Roman  Law,  559,  and  Justinian's  Tiiird  Book. 

"The  idea  of  requiring  children  who  had  been  advanced,"  said  Osmond,  J.,  in 
Mitchell  V.  Mitchell,  8  Ala.  414,  ''  during  the  lifetime  of  their  father,  to  bring 
the  money  or  property  thus  received  into  hotchpot,  when  he  died  intestate,  ap- 
pears to  have  been  obtained  in  England,  from  the  custom  of  the  city  of  London, 
and  incorporated  in  the  Statute  of  Distributions  of  22  &  23  Cliarles  II.  Tlie  cus- 
tom of  London,  which  was  referred  to,  is  that  which  divided  the  freeman's  per- 
sonal estate  into  tliree  part-,  one  of  which,  after  his  funeral  expenses  were  paid, 
went  to  the  widow,  one  to  his  children  unadvanced  by  him,  in  his  lifetime,  and 
the  other  third,  called  the  dead  man's  share,  he  might  dispose  of  by  will.  And 
any  of  the  children  who  had  not  been  fully  advanced  in  the  lifetime  of  the  par- 
ent, could  bring  the  sum  so  received  into  hotclipot,  share  equally  with  the  others 
in  tiie  orphanage  part.  .  .  .  The  question  is,  what  constitutes  an  advancement? 
By  the  custom  of  London,  it  appears  it  was  not  every  gift  that  constituted  an  ad- 
vancement. It  must  be  a  marriage  portion,  or  '  something;  to  set  up  in  the  world 
with  :'  Elliott  v.  Collier,  3  Atk.  526.  Presents  by  tlie  father  of  small  snms.  unless 
expressly  given  by  way  of  advancement,  are  not  to  be  brought  into  hotchpot: 
Morris  v.  Borrough,  1  Atk  ,  p.  403  ;  Elliott  v.  Collier,  3  Atk.  526.  Neitlier  is  money 
laid  out  in  education  or  in  traveling:  Pusey  u  Desbouvrie,  3  P.  Wms.  315,  in 
note.  The  custom  was  confined  alone  to  personal  property,  and  a  gift  of  land 
though  expressly  intended  as  an  advancement,  would  be  so  far  to  the  orphanage 
share :  Cevill  v.  Rirh,  1  Vern.  181.  The  father  could  also,  by  an  act  in  his  life, 
give  away  any  portion  of  his  persinal  estate,  to  one  of  Iiis  children,  provided  he 
divested  himself  of  all  property  in  it;  but  if  it  is  done  in  extremis,  and  could  be 


Origin  and  Essentials  of  Advancements.        507 

523.  English  Statute  of  Distributiox  Common 
Law  in  America. — This  statute  was  enacted  sixty  years 
after  the  first  jDermanent  settlement  was  made  by  the 
English  in  the  present  boundaries  of  the  United  States, 
and  fifty  years  after  the  settlement  at  Plymouth.  It  may 
therefore  be  regarded,  and  it  is  in  fact,  common  law  in 
this  country,  and  in  force  to-day  except  in  so  far  as  it  has 
been  modified  by  statutes  local  to  the  general  States.^ 
"  When  the  American  colonies  were  first  settled  by  our 
ancestors  it  was  held,"  said  the  Georgia  Supreme  Court, 
"  as  well  by  the  settlers,  as  by  the  judges  and  lawyers  of 
England,  that  they  brought  hither  as  a  birthright  and 
inheritance  so  much  of  the  common  law  as  was  applicable 
to  their  local  situation,  and  change  of  circumstances."  "" 
So  it  was  ruled  by  the  English  Court  of  Chancery  in 
1722,  "  That  if  there  be  a  new  and  uninhabited  country 
found  out  by  English  subjects,  as  the  law  is  the  birtli- 
right  of  every  subject,  so,  wherever  they  go,  they  carry 
their  laws  with  them,  and  therefore  such  new-found 
country  is  to  be  governed  by  the  laws  of  England ;  though 
after  such  country  is  inhabited  by  the  English,  acts  of 
Parliament  made  in  Eno-land,  without  namins:  the  foreio'u 
plantations,  Avill  not  bind  them."  ^  So  Chancellor  Kent 
has  said  :    "  The  common  law  so  far  as  it  is  aj^plicable  to 

considered  as  a  teslamentary  act,  or  if  any  power  was  reserved  over  tlie  subject  of 
the  gift,  it  was  considered  a  fraud  upon  the  custom,  as  it  regarded  tlie  other  chil- 
dren: Tonakyns  v.  Ladbroke,  2  Ves.  Sr.  591;  Elliott  v.  Collier,  1  Yes.  Sr.  15. 
This  examination  lias  been  made  of  the  custom  of  London,  as  it  was  the  original 
of  that  portion  of  the  English  Statute  of  Di-tributions,  requiring  advancements  to 
be  brought  into  hotchpot,  which  was  the  prototype  of  ours,  and  is  tlierefore 
proper  to  be  considered  as  an  aid,  in  coming  to  a  correct  conclusion,  as  to  its 
true  intent  and  meaning  " 

^  Mr.  Bishop  in  several  of  his  works  liasdiscussed  the  subject  of  the  common  biw 
in  force  in  this  country:  1  Bish.  New  Cr.  L.,  sect.  190;  Mar.  &  Div  ,  sects.  116 
to  125  ;  First  Book,  sects.  43  to  59.     See,  also,  21  Amer.  L.  Eeg.  523. 

estate  V.  Campbell,  T.  U.  P.  Charlton,  lOo. 

3  2P.  Wms.  75. 


508  Advancements. 

our  situation  and  government  has  been  recognized  and 
adopted  as  one  entire  system  by  the  Constitutions  of 
Massachusetts,  New  York,  New  Jersey,  and  Maryland. 
It  has  been  assumed  by  tlie  courts  of  justice  or  declared 
by  statute,  with  like  modifications,  as  the  law  of  the 
land,  in  every  State.  It  was  imported  by  our  colonial 
ancestors,  as  far  as  it  was  applicable,  and  was  sanctioned 
by  royal  charter  and  colonial  statute.  It  is  also  the 
established  doctrine  that  English  statutes  passed  before 
the  emigration  of  our  ancestors,  and  applicable  to  our  sit- 
uation, and  in  amendment  of  the  law  constitute  a  part  of 
the  common  law  of  this  country."  ^ 

524.  Equality  Basis  of  Statute  and  Decisions. — 
The  primary  object  of  this  statute  was  to  give  each  child 
of  the  intestate,  with  the  exception  of  the  "heir-at-law," 
or  eldest  born  male,  an  equal  share  or  portion  of  the  ances- 
tor's estate ;  to  do  equality  among  those  having  a  moral  right 
to  his  ^^roperty.  The  courts  have  followed  this  statute, 
not  only  in  its  letter,  but  in  its  spirit,  until  it  has  been 
said  that  "  Equality  is  equity  amongst  heirs,  and  the 
doctrine  of  advancement  has,  for  its  object,  the  further- 
ance of  this  end."  ^  In  another  case  from  the  same  State, 
it  was  said  that  ''  The  maxim  that  equality  is  equity 
among  heirs  is  a  cardinal  rule  of  distribution.  In  the 
absence  of  expressions  clearly  indicating  a  contrary  in- 
tention, the  courts  will  presume  that  the  testator  intended 
equality  of  distribution  among  his  own  children,  in  ac- 
cordance with  the  settled  policy  of  the  law  in  this  com- 
monwealth. As  between  a  loan,  a  gift  and  an  advance- 
ment, the  presumption   is  in   favor  of  an  advancement, 

1 1  Kent.  Com.  472.  See,  also,  Short  v.  Stotts,  5S  Ind.  29  ;  Sackett  v.  Sackett,  8 
Pick.  309 ;  Bruce  v.  Wood,  1  Met.  54  J. 
*  Miller's  Appeal,  31  Pa.  St.  337. 


Origin  and  Essentials  of  Advancements.        509 

because  of  its  tendency  to  equality."  ^  In  consider- 
ing whether  a  certain  transaction  between  a  parent  and 
child  is  an  advancement  or  not,  the  maxim  of  equal- 
ity and  that  each  and  every  child  he  has  has  an  equal 
moral  claim  on  his  property  at  his  death  must  always  be 
borne  in  mind.  Inequality  is  not  to  be  presumed,  nor 
favoritism  nor  preference  for  one  child  to  the  injury  of 
another.^ 

1  Patterson's  Appeal,  128  Pa.  St.  2G9,  280. 

*  Hepworth  t'.  Hepworth,  L.  R.  11  Eq.  10;  Edwards  v.  Freeman,  2  P.  Wms. 
435;  Johnson  v.  Belden,  20  Conn.  322;  White  v.  White,  3  Dana,  374.  In  speak- 
ing of  a  case  of  ademption,  Vice-Chancellor  W^igram  said,  and  the  statement  is 
applicable  to  an  advancement :  "  The  language  of  the  court  in  these  cases  is  that 
it  'leans  against  double  portions  ' — a  rule  which  though  sometimes  called  techni- 
cal, Lord  Cottenham  says  was  founded  on  good  sense,  and  could  not  be  disre- 
garded without  disappointing  the  intentions  of  the  donors  :  Pym  v.  Lockyer,  5 
Mylne  &  C.  29,  46.  .  .  .  The  rule  of  presumption,  as  I  before  said,  is  against 
double  portions,  as  between  parent  and  child  ;  and  the  reason  is  this  :  a  parent 
makes  a  certain  provision  for  his  children  by  his  will ;  if  they  attain  twenty-one, 
or  marry,  or  require  to  be  settled  in  life,  he  afterward  makes  an  advancement  to  a 
particular  child.  Looking  to  the  ordinary  dealings  of  mankind,  the  court  con- 
cludes that  the  parent  does  not,  when  he  makes  that  advancement,  intend  the  will 
to  remain  in  full  force,  and  that  he  has  satisfied  in  his  lifetime  the  obligation 
which  he  would  otherwise  have  discharged  at  his  death  ;  and  having  come  to  that 
conclusion,  as  the  result  of  general  experience,  the  court  acts  upon  it  and  gives 
effect  to  the  presumption  tliat  a  double  portion  was  not  intended.  If,  on  the  other 
hand,  tliere  is  no  such  relation,  either  natural  or  artificial,  tlie  gift  i)roceeds  from 
the  mere  bounty  of  the  testator ;  and  there  is  no  reason  within  the  knowledge  of 
the  court  for  cutting  off  anything  which  has  in  terms  been  given.  The  testator 
may  give  a  certain  sum  by  one  instrument,  and  precisely  the  same  sum  by  another  ; 
there  is  no  reason  why  the  court  should  assign  any  limit  to  that  bounty  which  is 
wholly  arbitrary.  The  court,  a'^  between  strangers,  treats  several  gifts  as  ■prima 
fade  cumulative.  The  consequence  is,  as  Lord  Eldon  observed,  that  a  natural 
child,  who  is  in  law  a  stranger  to  the  fatiier,  stands  in  a  better  situation  than  a  legiti- 
mate child;  for  tlie  advancement  in  the  case  of  the  natural  child  is  not  prima 
/ao'ean  ademption:"  Suisse  v  Lowther,  2  Hare,  424.  Thestatemeiit  of  Lord  Eldon 
referred  to  occurs  in  Ex  parte  Pye,  18  Ves.  140,  147.  "The  Statute  of  Distrilui- 
tion  does  not  break  into  any  settlement  that  has  been  made  by  tlie  father ;  it  only 
meddles  with  what  is  left  undisposed  of  by  iiim,  and  of  that  only  makes  such  :i 
will  for  the  intestate,  as  a  father,  free  from  the  partiality  of  affections,  would 
himself  make;  and  this  I  may  call  a  Parliamentary  Will:"  Edwards  v.  Freeman. 
2  P.  Wms.  435,  453,  by  Lord  Chief  Justice  Raymond.  Such  is  the  rule  in  Louis- 
iana: Benoit  v.  Benoit,  S  La.  228;  Montgomery  r.  Chaney,  13  La.  Ann.  207; 
Grandchamps  v.  Delpeuch,  7  Rob.  (La.)  -129. 


510  Advancements. 

525.  Definition  of  Advancement. — Turning  to  the 
English  Statute  of  Distribution,  we  may  say  that  an 
advancement  is  a  provision  made  by  a  father  in  his  life- 
time on  behalf  of  a  child.  A  legacy  or  any  other  pro- 
vision made  by  a  will,  consequently,  is  not  an  advancement, 
for  the  reason  that  such  "  legacy  is  not  a  provision  secured 
by  the  parent  in  his  lifetime."  ^  But  the  definition  to 
be  evolved  from  this  statute  is  not  broad  enough  to 
cover  all  the  cases ;  for  the  courts  have  not  stopped  at 
a  gift  by  a  father,  but  have  applied  it  to  a  gift  made  by 
the  mother  to  her  child.  We  may,  therefore,  define  an 
advancement  as  follows :  An  advancement  is  a  free  and 
irrevocable  gift  by  a  parent  in  his  lifetime  to  his  child,  or 
person  standing  in  place  of  such  child,  on  account  of  such 
child  or  person's  share  of  the  donor's  estate  which  he  will 
receive  under  the  statute  of  descent  if  the  parent  or  donor 
die  intestate.^  In  a  Maryland  case  it  was  said  that  "  an 
advancement,  in  legal  contemplation,  is  simply  the  giving, 

^  Edwards  v.  Freeman,  2  P.  Wms.  435. 

^  The  definition  we  have  given  is  not  broad  enough  to  cover  a  gift  by  a  husband 
to  his  wife,  which  the  statutes  in  certain  States  require  to  be  treated  as  an  ad- 
vancement. This  will  be  treated  of  hereafter.  We  give  a  few  judicial  definitions 
of  an  advancement:  "An  advancement  is  a  pure  and  irrevocable  gift  by  a  parent, 
in  his  lifetime,  to  his  child,  on  account  of  such  child's  share  of  the  estate,  after 
the  parent's  decease:"  Miller's  Appeal,  31  Pa.  St.  337.  See  Christy's  Appeal, 
1  Gr.  Cas.  (Pa.),  p.  370.  "An  advancement  is  that  which  is  given  by  a  father  to 
his  child,  or  presumptive  heir,  by  anticipation  of  what  he  might  inherit:"  Nolan 
V.  Bolton,  25  Ga.  352.  "  The  true  notion  of  an  advancement  is  a  giving,  by  antici- 
pation, the  whole  or  a  part  of  what  it  is  supposed  a  child  will  be  entitled  to  on 
the  death  of  the  parent  or  party  making  the  advancement:"  Osgood  v.  Breed, 
17  ^lass.,  p.  358.  "  The  true  idea  of  an  advancement  is  a  delivery  by  the  parent 
during  his  life,  to  one  or  more  of  his  children,  the  whole  or  a  portion  of  that  to 
which  the  child  would  be  entitled  on  a  distribution  of  the  estate  after  the  parent's 
decease:"  Wheatherhead  v.  Field,  26  Vt.,  p.  668.  "An  advancement  is  a  pay- 
ment or  appropriation  of  money  or  property,  or  a  settlement  of  real  estate,  made 
by  a  parent  to  or  for  a  child,  in  advance  or  anticipation  of  the  distributive  share 
to  which  such  child  would  be  entitled  after  the  death  of  the  parent,  and  with  a 
view  to  a  portion  or  settlement  in  life:"  Holliday  r.  White,  33  Tex.,  p.  460. 
"It  is  the  giving  by  a  parent  to  the  child  or  heir,  by  way  of  anticipation,  the 
whole  or  a  part  of  what  is  supposed  the  donee  will  be  entitled  to  on  the  death 


I 


Origin   and  Essentials  of  Advancements.        511 

by  anticipation,  the  whole  or  part  of  what  it  is  supposed 
the  child  or  party  advanced  would  be  entitled  to  receive 
on  the  death  of  the  party  making  the  advancement ;"  that 
*'  it  does  not  involve  the  elements  of  legal  obligation  or 
future  liability  on  the  part  of  the  party  advanced,  but  is 
a  pure  and  irrevocable  gift,  and  must  result  from  a  com- 
jolete  act  of  the  intestate  in  his  lifetime,  by  which  he 
divests  himself  of  all  property  in  the  subject,  though  in 
some  cases  and  under  some  circumstances  it  may  not  take 
effect  in  j^ossession  until  after  the  intestate's  death."  ^ 

526.  DiFFEES  FROM  "ADVANCES." — The  word  "ad- 
vancement "  does  not  cover  the  word  or  mean  "  ad- 
vances." Thus  it  has  been  said  that  "  the  word  *  advances,' 
when  taken  in  its  strict  legal  sense,  does  not  mean  gifts — 
advenceneti,  and  does  mean  a  sort  of  loan  ;  and  when 
taken  in  its  ordinary  and  usual  sense,  both  loans  and  gifts 
— loans  more  readily  perhaps,  than  gifts.  Advances  are 
said  to  take  place  when  a  factor  or  agent  pays  to  his  prin- 
cipal a  sum  of  money,  on  the  credit  of  goods  belonging  to 

of  the  party  making  it:"  Wallace  v.  Reddick,  119  111.  151,  lo6.  See,  also,  Darne 
V.  Lloyd,  82  Va.  859;  Grey  v.  Grey,  22  Ala.  233;  Meadows  v.  Meadows,  11  Ired. 
L.  148;  Kintzr.  Friday,  4  Dem.  540;  Grattan  v.  Grattan,  18  111.  167;  Cawthon 
V.  Coppedge,  1  Swan.  486 ;  House  v.  Woodward,  5  Coldw.  196 ;  Morris  v.  Morris, 
9  Heisk.  814;  Rains  v.  Hays,  2  Tenn.  Ch.  669;  Dillman  v.  Cox,  23  Ind.  440; 
Encli  V.  Biery,  110  Ind.  444;  Brook  r.  Latimer,  44  Kan.  431 ;  Chase  v.  Ewing, 
51  Barb.  597  ;  Barker  v.  Comins,  110  Mass.  477  ;  Fellows  v.  Litle,  46  N.  H.  27  ; 
Crosby  v.  Covington,  24  Miss.  619.  In  Canada  it  is  said  that  an  advancement 
there  differs  from  an  advancement  in  England  by  statute.  "  Under  our  law  an 
advancement  is  neither  a  loan  or  debt  to  be  repaid,  nor  an  absolute  gift.  It  is  a 
bestowment  of  property  by  a  parent  on  a  child  on  conditinn  tliat,  if  the  donee 
claims  to  share  in  the  intestate  estate  of  the  donor,  he  sliall  bring  in  this  property 
for  the  purposes  of  equal  distribution:"  Hall,  In  re,  14  Ontario,  557.  This  quo- 
tation is  quite  applicable  to  an  advancement  in  many  of  our  States,  where  similar 
statutes  have  been  enacted. 

^  Harley  v.  Harley,  57  Md.,  p.  342.  A  conveyance  by  way  of  advancement, 
in  good  faith,  is  a  disposal  of  property  within  the  meaning  of  a  covenant  to  renew 
a  lease,  if  the  lessor  "should  not  dispose  of"  the  premises  during  the  term: 
Elston  V.  Schilling,  42  N.  Y.  79. 


512 


Adva  ncements. 


the  principal,  wliicli  are  j)laced,  or  are  to  be  placed,  in  the 
possession  of  the  factor  or  agent,  in  order  to  reimburse 
himself  out  of  the  proceeds  of  the  sale."  ^  So  in  another 
case  it  was  said  that  "  '  Advances  '  is  not  the  appropriate 
term  for  money  or  property  thus  furnished,"  referring  to 
an  advancement ;  "  the  latter  phrase  [advances]  in  legal 
parlance,  has  a  different  and  far  broader  signification.  It 
may  characterize  a  loan  or  a  gift,  or  money  advanced, 
to  be  repaid  conditionally,  '  Lent  and  advanced '  were  the 
language  of  the  old  common  count,  in  assumpsit,  for  money 
loaned  or  advanced  to  be  repaid."  ^ 


1  Nolan  V.  Bolton,  25  Ga.  352. 

^  Chase  v.  Ewing,  51  Barb.,  p.  612.  In  this  case  the  testator's  will  contained 
the  following  clause:  "  Whatever  advances  I  have  made  to  any  of  my  children, 
or  to  tlie  husbands  of  any  of  my  children,  for  which  any  receipts  or  other  evi- 
dences of  indebtedness  may  be  found  among  my  papers  after  my  decease,  I  hereby 
give  and  devise  to  my  said  cliildren,  to  each  one  tlie  advance  made  to  eacli ;  my 
intention  being  by  this  that  such  receipt  or  other  evidence  of  indebtedness 
shall  not  be  collected  or  enforced  against  them,  or  either  of  them,  who  may  have 
signed  the  same,  but  that  the  same  be  given  up  to  that  one  of  ray  cliildren  who 
may  have  in  person,  or  whose  husband  may  have  signed  the  same,  the  receipt  or 
other  evidence  as  aforesaid  of  each  to  each."  It  was  held  that  the  entire  tenor 
and  scope  of  this  clause  showed  clearly  that  the  testator  had  in  view  not  gifts  and 
advancements  previously  made  as  such,  but  "  advances  "  onh',  in  the  nature  of 
loans,  and  for  which  lie  held  s-ouchers  whereby  the  claims  could  be  enforced. 

So  this  term  used  in  a  will  was  held  not  to  include  moneys  paid  for  mainte- 
nance of  the  testator's  children  :  Vail  t'.  Vail,  10  Barb.  69.  See  Onslow  ?>.  Mi- 
chell,  8  Ves.  490.  Use  of  in  statute  held  to  include  the  popular  meaning  of  the 
word  :  Orm-;by  v.  State,  6  Xev.  283.  In  Nolan  v.  Bolton,  25  Ga.  352,  the  testator 
declared  that  "it  is  my  will  and  desire,  that  at  the  division  of  my  property,  each 
one"  (legatee)  "shall  be  charged  with,  and  account  for  in  said  division,  all  money 
or  property  they  have  received  from  me,  so  as  to  make  them  share  equally  in  the 
property  to  be  divided,  and  in  advances  "  It  was  held  that  the  legatees  were 
bound  to  account  for  all  money  ''received''  by  them,  as  well  as  that  received  by 
them  as  a  loan,  or  that  received  by  them  as  an  advancement.  In  Barker  v. 
Corains,  110  Mass.  477,  a  testator  gave  by  his  will  a  cert:iin  sura  to  the  children 
of  his  deceased  son  G.,  "  which  with  tlie  advavcea  made  to  ray  son  G.,  in  his  life- 
time, will  make  them  share  equally  with  my  other  sons."  It  was  held  that  in 
considering  the  bearing  of  this  provision  upon  the  (juestion  of  the  testator's  sanity, 
the  v,'ord  "  advances'*  was  not  necessarily  restricted  to  the  meaning  "advance- 
ments," as  used  in  the  statutes,  but  might  be  taken  to  include  any  benefits  which 
the  testator  might  have  reasonably  considered  an  appropriation  of  the  estate. 


Origin  and  Essentials  of  Advancements.        513 

527.  " Advancemext  "  Distixgutshed  fiioma"Gift" 
OR  "  Debt." — Ev'ery  advancement  includes  an  irrevocable 
gift,  but  every  gift  does  not  include  an  advancement.  "  It 
is  distinguishable  from  a  gift,"  said  the  Supreme  Court  of 
Vermont,  "  which  parents  may  make  to  their  children, 
whether  to  a  greater  or  less  amount ;  for  in  such  case 
there  is  no  intention  to  have  it  chargeable  on  the  child's 
share  of  the  estate."  ^  So,  too,  it  is  distinguishable  from 
a  debt ;  for  in  the  case  of  an  advancement  the  common  re- 
lation of  debtor  and  creditor  does  not  exist.^ 

528.  DisTixGuisHED  FROM  AX  "  Ademptiox." — An 
ademption  differs  from  an  advancement  in  several  things, 
the  chief  of  which  is  that  it  must  be  connected  with  a  will. 
Thus  in  an  Indiana  case  it  was  said  that  "where  one  who 
has  made  his  will,  giving  a  legacy  to  a  child  or  grand- 
children, afterward  [not  before]  gives  a  portion  to  or 
makes  provision  for  the  child,  though  without  expressing 
it  to  be  in  lieu  of  the  legacy,  it  will  be  deemed  an  exemp- 
tion if  the  circumstances  indicate  that  intention,  if  it  is 
not  less  than  the  legacy,  if  it  is  certain,  and  of  the  same 
general  nature."^  So,  in  Xew  York,  it  was  said  that  the 
term  "  is  used  to  describe  the  act  by  which  the  testator 
pays  to  his  legatee,  in  his  lifetime,  a  general  legacy  which 
by  his  will  he  had  proposed  to  give  him  at  his  death.  It 
is  also  used  to  denote  the  act  by  which  a  specific  legacy 
has  become  inoperative  on  account  of  the  testator  having 
parted  with  the  subject."  *  These  definitions  are  broader 
than  it  is  necessary  for  our  purpose  in  this  connection,  for 
we  desire  to  confine  the  term  to  those  cases  in  which  a 
benefit  has  been  given  by  a  prior  will,  and  this  benefit  is 

1  Weatherhead  v.  Field,  26  Vt.  665. 
'lb. 

'Clendenning  v.  Clyrner,  17  Ind.  155;  Weston  ;•.  Johnson,  48  Ind.  1. 
*Langdon  v.  Astor,  16  N.  Y.  1,  40. 
33 


514  Advancements. 

afterward  taken  away  or  annulled  by  the  testator's  own 
act  in  conferring  some  other  gift  during  his  lifetime.  Thus 
if  a  testator  bequeaths  a  certain  horse  to  his  prospective 
donee,  and  before  his  death  give  him  the  horse,  or  give 
other  property  in  lieu  thereof,  tlie  legacy  thus  bestowed 
has  been  adeemed ;  the  testator  has,  as  it  were,  become 
his  own  executor  or  administrator,  and  delivered  to  the 
donee  what  such  official  would  have  been  required  by  the 
terms  of  the  will  to  deliver  at  the  testator's  decease.  It  is 
to  be  observed  in  this  connection  that  the  donee  need  not 
be  a  child  or  grandchild  of  the  testator;  it  is  sufficient  if 
the  latter  bear  the  relation  of  loco  parentis  to  the  donee.^ 

529.  DiFFEREisrcE  Betwee]!^^  Advancement  and  Sat- 
isfaction.— There  is  an  advancement  wdiich  is  distin- 
guishable from  those  already  discussed  as  well  as  from  an 
ademption,  and  which  distinction  is  not  always  clearly 
borne  in  mind.  It  is  that  involved  in  the  term  "Satisfac- 
tion." Suppose  a  parent  makes  a  settlement  on  his  child 
on  its  marriage  as  a  marriage  settlement,  or  covenant  in 
view  of  such  marriage  to  pay  him  a  certain  sum  of  money 
when  a  child  shall  be  born  as  a  fruit  of  the  marriage. 
There  is  no  legal  obligation  resting  upon  him  to  make 
such  a  settlement  or  to  enter  into  such  a  covenant ;  but 
having  covenanted,  at  least,  to  pay  a  certain  sum  of 
money,  a  court  of  equity  will  enforce  the  covenant,  view- 
ing the  marriage  as  at  least  a  sufficient  consideration  to 
sustain  it.     If  then  the  parent,  in  after  life,  make  an  ad- 

^Strother  v.  Mitchell,  80  Va.  149;  Ilansbroiigh  v.  Hooe,  12  Leigh,  316;  Monck 
V.  Monck,  1  B.  &  B.  298.  As  to  the  meaning  of  the  term  loco  parentis  see  Powys  v. 
Mansfield,  3  Mvlne  &  Cr.  359  ;  S.  C.  6  Sim.  52S  ;  Ex  parte  Pye,  18  Ves.  140 ;  Weth- 
erby  v.  Dixon,  19  Ves.  407,  412;  Pollock  v.  Worrall,  L.  R.  28  Ch.  Div.  552 ; 
Brinkerhoff  v.  Merselis,  4  Zab.  (N.  J.)  680;  State  v.  Crossley,  69  Ind.  203.  The 
subject  of  ademption  is  iisnally  divided  into  1,  Satisfaction  of  debts  by  legacies  ; 
2,  of  legacies  by  subsequent  legacies;  3,  of  legacies  by  portions  and  advancements ; 
and  4,  of  portions  by  legacies. 


Origin  and  Essentials  of  Advancements.        515 

vancement  to  tlie  child,  it  is  frequently  a  question  whether 
the  advancement  was  made  in  satisfaction  of  the  covenant. 
Now,  it  is  apparent  at  a  glance,  that  a  child,  in  the  case 
of  an  ordinary  advancement,  where  no  such  settlement 
has  been  made,  has  no  option  whether  or  not  the  gift  shall 
be  considered  as  an  advancement ;  that  is  a  question  en- 
tirely optional  with  the  donor.  If  it  was  his  intention 
that  the  gift  should  be  taken  and  deemed  an  advance- 
ment, and  such  intention  is  clearly  shown,  then  it  must 
be  so  taken  and  construed,  however  much  the  donee  may 
object.  But  in  the  case  of  a  covenant  to  make  a  marriage 
settlement  the  consent  of  the  donee  is  essential ;  and 
unless  he  consent,  the  transaction  cannot  be  taken  as  a 
satisfaction  of  the  covenant.  Here  are  two  parties,  both 
of  which  must  ao-ree  how  the  transaction  must  be  consid- 
ered.  Satisfaction  is,  therefore,  to  be  understood  as  the 
cancellation  of  a  prior  legal  obligation  by  the  substitution, 
with  the  consent  of  both  parties,  of  a  performance  other 
than  that  called  for  by  the  terms  of  the  covenant  or 
ao-reement.  It  differs  from  the  case  of  an  advancement 
purely,  by  the  facts  that  there  is  no  prior  legal  obligation 
nor  any  assent  of  the  recipient  of  the  gift  essential.^ 

530.  Revocatiox  of  an  Advancement. — Every  ad- 
vancement is  a  perfected  gift ;  and  if  the  gift,  for  any 
reason,  is  not  complete,  it  is  not  an  advancement.  It, 
therefore,  results  that  without  the  consent  of  the  donee  the 
donor  has  no  power  to  recall  or  revoke  an  advancement.^ 

^Lord  Chichester  v.  Coventry,  L.  R.  2  II.  L.  71 ;  Tussand's  Estate,  L.  R.  9  Ch. 
Div.  363,  380;  Wallace  v.  Du  Bois,  65  Md.  153. 

2 O'Brien  v.  Shiel,  L.  R.  7  Ir.  Eq.  255;  Dame  r.  Lloyd,  82  Va.  859;  Yancy  v. 
Yancy,  5  Heisk.  353 ;  High's  Appeal,  21  Pa.  St.  283  ;  Largent  v.  Berry,  3  Jones  L. 
531 ;  Marston  v.  Lord,  65  N.  H.  4 ;  Lisloff  v.  ITart,  25  jSIiss.  245 ;  Gee  v.  Gee,  32 
Miss.  190;  Fatheree  v.  Fletcher,  31  Miss.  265;  Slack  v  Slack,  26  Miss.  287; 
Mallett  V.  Page,  8  Tnd.  364;  Patterson  v.  Mills.  69  Ta.  755;  Miller's  Will,  73  Ta. 
118;  Alleyne  v.  Alleyne,  8  Ir.  Eq.  493;  S.  C.  2  Jon.  &  L.  641 ;  Harley  v.  Har- 
ley,  57  Md  ,  p.  342. 


516  Advancements. 

531.  Changing  Gift  to  Advancement. — A  gift  vests 
the  absolute  title  to  the  property  in  the  donee,  free  from 
any  and  all  control  over  it  by  the  donor.  It  differs  from 
an  advancement  chiefly  in  the  fact  that  it  cannot  be 
l)rought  to  reduce  the  portion  of  the  parent's  estate  that 
the  donee  child  receives  when  his  parent  has  died  intestate. 
To  permit  the  donor  to  change  an  absolute  gift  to  an  ad- 
vancement without  the  consent  of  the  donee  would  ma- 
terially reduce  the  value  of  his  prospective  interest  in  his 
parent's  estate.  All  the  cases,  therefore,  declare  that  a 
gift  cannot  be  changed  to  an  advancement  without  the 
consent  of  the  donee.^  If  the  donor  desires  that  an  ab- 
solute gift  be  charged  up  against  any  portion  the  donee 
will  receive  at  his  death  if  he  die  intestate,  the  only  way 
he  can  secure  the  accomplishment  of  his  desire  is  to  exe- 
cute a  will  directing  that  the  value  of  such  gift  shall  be 
charged  to  the  donee  in  the  final  distribution,  and  that 
his  portion  shall  be  reduced  by  that  amount.^  Therefore, 
subsequent  declarations  of  the  donor  that  he  intended  a 
transaction  amounting  to  an  absolute  gift  to  be  an  ad- 
vancement is  not  admissible  to  show  that  the  gift  was 
changed  to  an  advancement.^  So  where  a  father  advanced 
to  his  son  a  "  wool  carder"  of  the  value  $1,000,  and 
afterward  took  possession  of  and  used  it,  it  was  held  that 
he  became  liable  to  the  son  for  value  of  its  use,  and  that 
the  statute  of  limitations  ran  against  the  claim  for  such 
use  just  as  it  runs  against  any  other  claim.  The  claim 
for  such  use  being  barred  before  the  father's  death,  the 

^  Slack  V.  Slack,  26  Miss.  287  ;  HiUman's  Estate,  30  Pitts.  L.  J.  385  ;  Lawson's 
Appeal,  23  Pa.  St.  85 ;  Wallace  v.  Owen,  71  Ga.  544 ;  Harper  v.  Parks,  63  Ga. 
705 ;  Hall,  In  re,  14  Ontario,  557. 

2  Bradsher  v.  Cannady,  76  N.  C.  445. 

3  Fray  v.  Heydt,  116  Pa.  St.  601 ;  Heydt  v.  Frey,  21  W.  N.  C.  265.  As  we  shall 
hereafter  see,  subsequent  declarations  of  the  donor  or  intestate  are  not  admissible 
for  any  purpose. 


Origin  and  Essentials  of  Advancements.        517 

son  could  not  insist  that  its  value  should  not  be  deducted 
from  the  amount  of  his  advancement/ 

532.  Changing  Advancement  to  Gift. — Since  the 
donee  will  be  benefited  by  the  changing  of  an  advance- 
ment to  a  gift,  the  donor  may  make  such  a  change  with- 
out the  consent  of  such  donee.^ 

533.  Changing  Debt  to  an  Advancement. — The  do- 
nor and  donee  may  mutually  change  a  debt  to  an  advance- 
ment, but  inasmuch  as  every  advancement  is  a  perfected 
gift,  and  no  gift  is  perfect  unless  the  donee  accept  its  pro- 
visions and  benefits,  therefore  a  debt  cannot  be  changed 
to  an  advancement,  and  a  gift  thus  be  thrust  upon  the  do- 
nee, unless  he  consent  to  such  change.^ 

534.  Changing     Advancement     to    a    Debt. — An 

agreement  to  clianoe  an  advancement  to  a  debt  is  not 


"O' 


'  The  value  of  the  advancement  was  $1,000,  the  use  $300,  and  the  son  claimed 
lie  Jihould  be  charged  with  only  $700  in  his  advancement.  This  claim  was  dis- 
allowed: PersoU  r.  Scott,  64  Ga.  767.  As  an  advancement  is  perfect  before  the 
death  of  the  donor,  a  delivery  of  the  gift  to  the  administrator  of  the  donor  is  not 
binding  on  the  donee  and  he  may  rightfully  reclaim  the  gift :  Sayre  i».  Sayre.  5 
Stew.  (N.  J.)  61 ;  S.  C.  8  Stew.  56S. 

2  Wallace  v.  Owen,  71  Ga.  544;  Needles  v.  Needles,  7  Ohio  St.  432.  In  Har- 
per V.  Parks,  63  Ga.  705.  it  is  said  that  the  change  may  be  made  by  mutual  con- 
sent of  the  donor  and  donee,  but  this  is  contrary  to  all  the  authorities,  and  proba- 
bly a  slip  of  the  pen. 

If  a  statute  requires  an  advancement  to  be  evidenced  by  certain  written  instru- 
ments, then  the  change  of  an  advancement  to  a  gift  cannot  be  accomplished  ex- 
ceiit  by  the  destruction  or  changing  of  such  instruments:  Wheeler  v.  Wheeler,  47 
Vt.  637. 

3  Dewee's  Estate,  3  Brewster,  314;  S.  C.  7  Phila.  49S ;  Kirby's  Appeal,  109  Pa. 
St.  41 ;  Darne  v.  Lloyd,  82  Va.  859.  But  where  it  was  attempted  to  turn  a  debt 
o.ved  by  the  husband  to  his  wife's  father  into  an  advancement,  in  order  to  set  it 
off  against  the  amount  of  a  legacy  given  to  the  wife  by  the  father  in  his  will  sub- 
sequently executed,  it  was  held  that  the  declarations  of  the  father  made  after  the 
debt  was  created  were  not  admissible  for  that  purpose :  Kreider  v.  Boyer,  10  Watts, 
54. 

The  forgiving  of  interest  due  on  a  note  is  an  advancement :  Leblanc  r.  Bertrant, 
16  La.  Ann.  294. 


518  Advancements. 

binding  on  tlie  donee,  unless  there  is  a  consideration  for 
the  ao-reement  makino'  the  chan2;e.^ 

535.  Assent  of  Donee  to  an  Advancement. — A 
donee  is  not  compelled  to  accept  an  advancement  any 
more  than  he  is  compelled  to  accept  a  gift ;  but  if  he  ac- 
cept the  benefit  of  an  advancement  he  cannot  insist  that 
he  accepted  it  as  a  gift  and  not  as  an  advancement.  He 
must  take  the  gift  upon  such  terms  as  the  donor  sees  fit 
to  attach  to  it  and  not  otherwise.  The  donor  has  the 
absolute  right  of  disposal,  which  includes  the  right  to  im- 
j)Ose  just  such  terms,  however  onerous,  as  he  sees  fit,  and 
the  donee  cannot  dictate  to  him  how  he  shall  offer  or  be- 
stow the  property.^ 

536.  Donee  Refusing  to  Accept  Advancement. — 
Sup230se  the  donee  refuse  to  accept  the  advancement,  and 
the  donor,  still  insisting  that  he  must  accej)t  it  as  such, 
dies ;  what  effect  will  this  have  upon  the  portion  the 
donee  will  receive  from  the  donor's  estate  ?  The  solution 
of  this  question  lies  in  one  of  the  essentials  of  a  valid  gift, 
Avhich  is  that  no  gift  is  valid  unless  the  donee  accept  it. 

^  Higham  v.  Vanosdol,  125  Ind.  74;  Harris  ?•.  Harris,  69  Ind.  181.  If  the  ad- 
vancement is  complete,  nu  memorandum  that  the  donor  may  subsequently  execute 
can  be  used  to  show  that  the  transaction  was  not  an  advancement  or  gift :  O'Brien 
V.  Shiel,  L.  E.  7  Ir.  Eq.  255. 

^See  Burbech  v.  Spollen,  10  .\mer.  Eec  491 ;  ZSesmith  v.  Dinsmore,  17  N.  II. 
515  (by  statute  assent  not  necessary),  if  the  donee  receive  the  proceeds  and  en- 
joy it,  or  even  if  he  does  not  enjoy  it,  as  where  tlie  advancement  consists  of  the 
notes  of  a  third  party  which  are  never  collected  by  reason  of  the  insolvency  of 
the  maker,  he  is  bound  :  Alleman  v.  Manning,  44  Mo.  App.  4.  In  the  case  of  a 
married  woman  wlio  cannot  assent,  or  who  insists  that  tlie  advancement  was  a 
contract  and  not  a  gift,  and  repudiates  the  contract,  she  will  be  bound  to  account 
for  the  proceeds  thus  received,  as  an  advancement :  Bucknor's  Estate,  7  Pa.  C.  C. 
361.  Under  the  Georgia  code  the  donee's  assent  must  be  given :  Holliday  v. 
Wingfield,  59  Ga.  206  ;  Wallace  r.  Oven,  71  Ga.  541.  In  the  case  of  an  «c/<w;)- 
tion,  the  consent  of  the  donee  th-.it  the  leg:icy  should  be  aileemed  is  not  necessary  : 
Ciowlesf.  Crowle-,  56 Conn.  240;  Chapman  v.  Allen,  56 Conn.  152;  Richards  v. 
Humphreys,  15  Pick  133,  merely  accepting  the  gift  making  the  ademption. 


Origin  and  Esseritiah  of  Advancements.        519 

As  every  advancement  is  a  valid  gift,  then  there  can  be 
no  valid  advancement  unless  the  donee  accept  it.  Of 
course,  as  was  said  in  the  previous  section,  if  the  donee 
accept  the  benefit  of  the  advancement  he  cannot  afterward 
insist  that  it  was  a  gift  and  not  an  advancement.  If  the 
donor  desires  that  the  proposed  gift  thus  tendered  as  an  ad- 
vancement shall  be  deducted  from  the  portion  the  donee 
will  inherit  from  him,  he  can  circumvent  the  obstinacy  of 
the  donee  in  refusing  to  accept,  by  the  execution  of  a  will, 
providing  therein  that  the  tendered  gift  or  its  value  shall 
be  deducted  from  the  value  of  the  property  thus  tendered, 
or  he  can  equalize  the  beneficiaries  under  the  will  by  giv- 
ing to  the  donee  an  amount  decreased  to  the  extent  of  the 
tendered  gift. 

537.  Intention  of  Donor  Controls. — The  intention 
of  the  donor  whether  or  not  a  certain  gift  is  to  be  con- 
sidered as  an  advancement  is  always  material  and  the  con- 
trolling one,  aside  from  any  statute,  in  the  case.^  The  in- 
tention that  the  gift  shall  be  an  advancement  must  exist 
at  the  time  it  is  made,  and  an  intent  that  it  shall  be  an 
advancement  formed  after  the  gift  is  perfected  is  unavail- 
ing, unless  the  donee  consent  that  it  shall  be  so  taken  and 
understood.^  This  intention  is  one  of  fact  to  be  gathered 
from  what  was  said  and  done  at  the  time  of  the  gift,  from 
the  subsequent  statements  of  the  donee  when  against  his 
interest  and  offered  by  the  party  claiming  the  transaction 
was  an  advancement  and  not  a  gift,  from  tlie  kinship  of 
the  donor  to  the  donee,  from  his  affection  for  him,  from 
their  intimacy,  from  his  confidence  in  him,  from  a  con- 

^  Lee  V.  Boak,  11  Grat.  182;  Williams  v.  ■\Villianis,  15  Lea.  438  ;  Steele  v.  Frier- 
son,  85  Tenn.  430  ;  Roberts  v.  Coleman,  IG  S.  E.  Rep.  482  ;  Maf-on  v.  Holninn,  10 
Lea.  315  ;  Pels  t;  Fels,  1  Ohio  C  C.  420  ;  Lyon's  Estate,  70  la.  375  ;  Holliday  v. 
Wingfielil,  59  Ga  206 ;  Groom  ?•.  Tiiomson,  13  Ky.  L.  Rep.  223;  Morgan,  In  re, 
104  N.  Y.  74  ;  Meeker  v.  Meeker,  15  O  nn.  3S3. 

^  Rains f.  Hays,  2  Tenn.  (  li.,  p.  674  ;  Aden  v.  Aden,  10  Lon.  45.1 ;  Yancey  r.Ynncey, 
5  Heisk.  353  ;  Bradslier  v.  Counady,  76  N.  C.  445  ;  JIel\  in  v  lUili.ird,  82  N.  C.  33. 


520  Advancements. 

sideration  of  the  financial  condition  of  the  donee  at  the 
time  of  \l\Q  gift,  and  from  the  amount  of  the  gift  as  com- 
pared with  the  donor's  remaining  property.  In  other 
words,  from  what  was  said  and  done  at  the  time  of  the 
gift,  and  as  the  lawyers  and  judges  inartistically  and  tau- 
tologically  say,  "  from  all  the  surrounding  circumstances."  ^ 
The  usual  statute  does  not  preclude  an  inquiry  into  the 
donor's  intention.  Thus  where  a  statute  provided  that 
"  any  estate,  real  or  personal,  that  may  have  been  given 
by  any  deceased  person  in  his  lifetime,  as  an  advancement 
to  any  child,  shall  be  taken  by  such  child,  toward  his 
share  of  the  estate  of  the  deceased,"  and  another  statute 
declared  that  "  if  any  child  shall  have  been  advanced  by 
the  deceased,  by  settlement  or  portion  of  real  or  personal 
estate,  the  value  thereof  shall  be  reckoned  ;"  it  was  de- 
cided that  these  statutes  did  not  prevent  either  party  from 
showing  the  donor's  intention  when  he  made  the  gift.^ 

538.  Statute  Changing  Eule  as  to  Intention. — 
Statutes  have'  occasionally  been  passed  that  prevent  the 
showing  of  the  intention  of  the  donor  to  constitute  the 
transaction  an  advancement.  Thus  in  Kentucky  it  is  pro- 
vided that ''  any  real  or  personal  property  or  money,  given 
ordevised  by  a  parent  or  grandparent  to  a  descendant,  shall 
be  charged  to  the  descendant,  or  those  claiming  through 
him,  in  the  division  and  distribution  of  the  undevised  es- 
tate of  the  parent  or  grandparent,  and  such  party  shall 
receive  nothing  further  therefrom,  until  the  other  de- 

1  Homiller's  Estate,  17  Phila.  513  ;  S.  C.  42  Leg.  Int.  488  ;  17  W.  N.  C.  238  ; 
Dilley  v.  Love,  61  Md.  003;  Wallace  v.  Eeddick,  119  111.  151 ;  Williams  v.  Wil- 
liams, 15  Lea.  438  ;  Steele  v.  Frierson,  85  Tenn.  430  ;  Mason  v.  Holman,  10  Lea. 
315  ;  Daiden  v.  Harrill,  10  Lea.  421 ;  Merkel's  Appeal,  89  Pa.  St.  340  ;  Alexan- 
der V.  Alexander,  1  N.  Y.  St.  Eep.  508;  Speer  v.  Speer,  1  McCart.  240;  Murless 
V.  Franklin,  1  Swanst.  13  ;  Jeans  v.  Cook,  24  Beav.  513;  S.  C.  4  Jur.  N.  S.  67  ;  27 
L.  J.  Ch.202. 

2Sh  iw  V.  Kent,  11  Ind.  80;  Dillman  v.  Cox,  23  Ind.  440;  Wolfe  v.  Kable,  107 
Ind.  565  ;  Dille  v.  Webb,  01  Ind.  85. 


Origin  and  Essentials  of  Advancements.         521 

scendauts  are  made  proportionately  equal  with  him, 
according  to  his  descendible  and  distributable  share  of 
the  whole  estate,  real  and  personal,  devised  and  un- 
devised." ^  Under  this  statute  the  intention  of  the  donor 
"  is  never  consulted,  the  cardinal  object  of  the  statute  be- 
ing to  make  those  entitled  equal  in  the  distribution  of  the 
estate."  ^  In  Vermont  a  statute  provided,  in  substance, 
that  if  any  sum  has  been  advanced  by  the  intestate,  the 
advancement  shall  be  reckoned  to  the  share  of  the  donee, 
"  and  that  any  personal  estate,  delivered  to  such  heir, 
whereof  a  charge  or  memorandum  in  writing  is  made  by 
such  intestate,"  shall  be  deemed  and  taken  an  advance- 
ment to  such  heir.  Under  this  statute  it  was  held  that  it 
was  not  admissible  to  show  the  intention  of  the  donor,  ex- 
cept in  so  far  as  it  could  be  gathered  from  the  "  charge  or 
memorandum  in  writing."  ^ 

Gen.  Stat.,  chnp.  31,  sect.  15 ;  Acts  1851,  p.  342. 

^^  Bowles  V.  Winchester,  13  Br.sli.  1 ;  Phillups  v.  Phillups,  20  S.  W.  Rep.  541 ; 
Cleaver  •!».  Kirk,  3  Met.  270;  Sliawhan  r.  Shawhan,  10  Bush.  600;  Stevenson  v. 
Martin,  11  Bush.  485.  Perhaps  the  statement  in  the  text  is  a  little  strong.  It 
may  be  put  that  the  intention  must  control  in  determining  whether  or  not  tlie 
transaction  is  a  gift  or  advancement;  hut  it  matters  not  whether  it  be  one  or  tiie 
other,  if  the  donee  desire  to  participate  in  the  distribution  of  the  donor's  estate 
he  must  account  for  and  bring  into  "  hotchpot"  the  gift  or  advancement,  regard- 
less of  its  name,  thus  received.  This  seems  to  be  the  view  in  South  Carolina  un- 
der a  similar  statute,  the  court  saying  :  "  Then  it  is  said  that  the  intestate  did  not 
intend  that  her  son  should  account  for  the  bond  as  an  advancement.  This  can 
hardly  be  said  to  be  a  question  of  intention.  A  father  may  give  his  son  half  his 
estate  and  declare,  by  the  most  formal  instrument,  that  he  does  not  intend  it  as  :.n 
advancement;  but,  if  he  afterward  die  intestate,  the  law  precludes  such  a  son 
from  any  share  in  the  inheritance,  unless  he  bring  such  previous  gift  into  hotch- 
pot. What  is,  or  is  not,  an  advancement  may  depend  on  circumstances,  as  in 
Murrel  v.  Murrel,  2  Strobh,  Eq.  148  ;  Cooner  v.  ISIay,  3  lb.  185  ;  and  Ison  v.  Ison, 
5  Rich.  Eq.  15;  but  the  mere  declarations  of  the  donor  cannot  alter  the  operation 
of  the  law  either  as  to  the  character  of  the  gift  or  even  the  mode  of  valuation  :"' 
Rees  V.  Rees,  11  Rich.  Eq.  86. 

nVeatherfield  v.  Field,  26  Vt.  6G5.  See,  also,  Newell  r.  Newell,  13  Vt.,  p.  ?",; 
Brown  V.  Brown,  16  Vt.,  p.  203 ;  and  Adams  v.  Adams,  22  Vt.,  p.  69,  modifying 
Newell  V.  Newell.  A  similar  statute  and  rule  existed  in  IMassachusetts :  Quarles  v. 
Quarles,  4  Mass.  680 ;  Barton  v.  Rice,  22  Pick.  508 ;  Ashley,  Ez  parte,  4  Pick.  21. 


522 


Advancements. 


539.  Kelatio]!^'  of  Donor  to  Donee. — The  donor 
must  stand  in  such  blood  relation  to  the  donee  that  the 
latter  inherits  a  part  of  the  former's  estate  if  he  were  to 
die  intestate;  if  he  inherits  all  of  the  intestate's  property, 
then  no  question  of  advancement  can  arise,  because  there 
can  be  no  distribution.  Usually  this  is  a  relationship  of 
father  or  mother  to  son  or  daughter.  In  such  instances 
the  law  presumes  that  the  donor  intended  to  make  an 
equal  and  just  division  of  his  estate.^  Any  one  inheriting 
from  the  donor  through  the  donee  is  bound  by  the  ad- 
vancement made  to  the  latter,  and  the  person  so  inherit- 
ing from  such  donee  stands  exactly  in  the  same  position 
as  the  donee  would  stand  if  he  were  alive.^ 

540.  Gift  to  Graxdchildrex. — Compelling  a  child 
to  stand  in  the  shoes  of  a  parent  who  has  been  advanced 
is  a  very  different  thing  from  compelling  a  grandchild, 
who  has  received  a  part  of  his  grandfather's  estate,  and 
who  will  inherit  more  at  his  death  if  his  ancestor  dies  in- 
testate, to  account  for  such  part  or  portion  as  an  advance- 
ment. A  careful  reading  of  the  5th  section  of  the  Eng- 
lish Statute  of  Distributions  will  show  that  only  a  child 
must  account  for  an  advancement,  and  the  grandchildren 
only  when  their  parent  has  been  advanced.  Nothing  is 
said  about  advancing  a  grandchild.  In  an  early  case  it 
appeared  that  a  grandfather  took  bonds  in  the  name  of 
his  grandchildren,  wdio  were  infants,  their  father  being 

illolliday  V.  Wingfiekl,  nO  Ga.  20r; ;  Wallioe  r.  Eed.1i.lc,  119  111.  151;  Mc- 
Mahill  D.  McMahill,  69  la.  llo  ;  Burton  v.  Baldwin,  01  la.  283;  Hodgson  v. 
Macy,  8  Ind.  121 ;  Dillraau  r.  Cox,  23  Ind.  440;  Iligham  ?•.  Vanosdol,  125  Ind. 
74;  Stanley?'.  Brannon,  6  Blackf.  193;  Scott  v.  Harris,  127  Ind.  520;  State  r. 
Jameson,  3  G.  &  J.  442  ;  Hall  v.  Hall,  107  Mo.  101  ;  Parker  v.  Newitt,  IS  Ore. 
274  ;  Tayl.)r  v.  Muller,  19  Ore.  550;  Lewis's  Appeal,  127  Pa.  Pt.  127. 

''Westf.  Bolton,  23  Ga.  531;  Bransford  v.  Bnuisford,  51  Ga.  2J  ;  McLure  v. 
Steele,  14  Rich.  Eq.  105;  Rees  iJ.  Kees,  11  Rich.  Eq.  813;  Dupuy  v.  Dupont,  11 
La.  Ann.  226. 


Origin  and  Essentials  of  Advancements.        523 

dead.  In  passing  upon  the  question  tlie  Chancellor  said: 
"  There  is  a  difference  in  the  case  where  the  father  is 
dead  and  where  he  is  alive  ;  for  when  the  father  is  dead, 
the  grandchildren  are  in  the  immediate  care  of  the  grand- 
father, and  if  he  take  bonds  in  their  names,  or  make 
leases  to  them,  it  shall  not  be  judged  trusts  [as  it  would 
be  if  they  were  strangers],  but  provision  for  the  grand- 
child, unless  it  be  otherwise  declared  at  the  same  time  ; 
and  decreed  accordingly,  on  that  reason,  though  there 
were  other  matters."  ^  This  is  unsatisfactory.  In  another 
old  authority  it  is  said  that  "  if  a  grandfather  takes  bonds 
in  the  name  of  his  grandchildren,  the  father  being  dead, 
this  shall  be  an  advancement  for  the  grandchildren,  and 
not  a  trust  for  the  grandfather  ;  for  the  father  being  dead, 
the  children  are  under  the  immediate  care  of  the  grand- 
father."  ^     In   Pennsylvania  the  statute  concerning  ad- 

'  Ebrand  v.  Dancer,  2  Ch.  Cas.  2G,  and  see  same  case  in  note  to  Currant  r. 
Jago,  1  Coll.,  p.  261.  This  decision  was  rendered  in  1680,  ten  years  after  the 
Statutes  of  Distributions  was  enacted. 

In  1719  a  case  arose  where  a  grandmother  bought  an  annuity  for  £100  in  lier 
grandchild's  name.  The  child's  father  gave  the  grandmother  a  bond  to  repay 
the  £100  if  the  child  died  before  the  grandmother,  who  received  the  income  :ind 
kept  the  annuity  tally  or  bond,  the  gramlciiild  making  no  claim  to  it.  It  was 
held  that  the  grandchild  was  not  entitled  to  the  proceeds  of  the  tally :  Loyd  v. 
Bead,  1  P.  Wms.  607. 

Where  by  the  custom  of  a  manor  copyholds  were  held  for  lives  successive  (the 
legal  tenancy  being  in  the  cesUd  que  vie),  the  insertion,  by  the  beneficial  owner  of 
such  copyiiolds,  of  the  name  of  the  illegitimate  son  of  his  daugliter  as  ceytvi  que 
vie  thereof,  was  hald  not  to  be  of  itself  sufficient  to  raise  a  presumption  that  such 
copyholds  were  intended  to  be  giveu  to  sucli  grandchild  by  way  of  advancement, 
although  it  and  his  mother  were  at  the  time  of  the  transaction  inmates  of  the 
grandfather's  house  and  maintained  him,  and  although  it  continued  to  be  so 
maintained  af;er  the  marriage  of  its  parents,  wliich  took  place  shortly  afte"  the 
said  transaction:  Tucker  v.  Burrow,  2  H.  &  M.  515.  A  few  cases  on  supplying  a 
surrender  of  copyhold  for  grandchildren  are  inserted,  though  they  throw  little 
light  on  the  subject:  Perry  v.  Whitehead,  6  Ves.  544  ;  Hills  v.  Downton,  6  Ves. 
557;  Kettle  v.  Town^end,  1  Salk.  187;  Chaj.man  v.  Gibson,  3  Bro.  C.  C.  229; 
AValts  v.  Bulks,  1  P.  Wms.  60 ;  Fursaker  v  Robinson,  Pre.  Ch.  475  ;  S.  C.  1  Eq. 
Cas.  Abr.  12.3,  pi.  9  ;  Hill  v.  Hill,  8  Ves.  &  B.  183. 

^  1  Eq.  Cas.  Abr.  382,  pi.  11,     The  case  relied  upon  is  Ebrand  v.  Dancer,  supra. 


I 


524  Advancements. 

vancements  is  almost  identical  with  the  5tli  section  of  the 
English  Statute  of  Distributions,  and  the  question  arose 
whether  a  grandchild  advanced  after  its  father's  death,  by 
its  grandparent,  was  chargeable  with  such  advancement 
on  the  death  of  such  grandparent.  The  court  held  that 
he  was  liable  to  be  charged,  construing  the  word  "  chikl " 
to  mean  "  grandchild "  as  well  as  child.  "  The  clear 
intent  and  design  of  the  statutes  are  to  equalize  the 
property  of  the  intestate  among  his  children.  Where 
one  of  his  several  children  has  died  during  his  life,  leav- 
ing an  only  child,  who  the  intestate  had  advanced  after 
the  death  of  his  father,  it  seems  to  us  the  whole  reason 
of  the  statute  compels  us  to  hold  it  an  advancement.  To 
do  otherwise  would  work  injustice  to  the  surviving  chil- 
dren and  defeat  that  equal  distribution  which  the  statute 
was  designed  to  secure."^  Under  the  New  York  statute  a 
grandchild  advanced  by  its  grandparent  after  the  death 
of  its  parent  is  chargeable  with  such  advancement ; 
and  it  may  insist  that  a  child  of  the  grandparent  advanced 
after  the  death  of  its  father  be  charged  with  such  advance- 
ment in  the  distribution  of  the  grandparent's  estate.^ 
A  statute  of  North  Carolina  provided  that  "  in  case 
any  one  of  the  children  [of  an  intestate]  shall  have  been 
advanced  in  personal  estate  of  greater  value  than  an 
equal  share  thereof  which  shall  have  come  to  the  other 
children,  he  or  his  legal  representative  shall  be  charged 
in  the  division  of  the  real  estate,  if  there  be  any,  with  the 
excess  in  value,  which  he  may  have  received  as  aforesaid, 
over  and   above  an   equal  distributive  share  of  the  per- 

^  Eshlemin's  Appeal,  74  Ta.  St.  42;  reversing  1  Leg.  Chron.  99;  Storey's  Ap- 
peal 83  Pa.  St.  89. 

^Beebe  r.  Estabrook,  79  N.  Y.  24G  ;  S.  C.  11  Ilun,  523.  The  court  calls  a;- 
teniion  to  Smith  ?•.  Smith,  5  Ves.  721,  where  a  contra  opinion  is  intimated.  So 
ill  Louisiana:  Webb  v.  (roodby,  12  Rob.  539;  Mason  v.  Mason,  12  La.  589; 
Destrehan  v.  Destrehan,4  N.  S.  (La.)  557;  Successiun  of  Tournillon,  15  La.  Ann.  263. 


Origin   and  Essentials  of  Advancements.        525 

sonal  estate,"  ^     It  was  held  that  the  grandchildren   were 
comiDelled  to  account  for  all  property  advanced  by  their 
grandparent  to  their  own  parent,  )3ut  were  not  compelled 
to  account  for  or  bring  into  hotchpot  property  given  them 
directly  by  their  grandparent  after  their  parent's  death ; 
the  court  holding  that  the  statute  was  "  restricted  to  gifts 
from  a  parent  to  a  child,"  and  did  "  not  include  donations 
to  grandchildren."  ^     In  Kentucky  a  statute  provided  that 
"  any  real  or  personal  property  or  money  given  or  devised 
to    a  descendant  shall  be  charged  to  the  descendant  or 
those  claiming  through  him  in  the  division  and  distribu- 
tion of  the  undivided  estate  of  the  parent  or  grandparent, 
and  such   party  shall  receive  nothing  farther  therefrom 
until  the  other    descendants  are   made    proportionately 
equal  with  him,  according  to  his   descendible  and  distri- 
butable share  of  the  whole  estate,  real   and  personal,  de- 
vised and  undevised."  ^     It  was  claimed  that  a  gift  made 
by  a  grandparent  to  his  grandchild,  while  the  parents  of 
such  child  were  living,  must  be  construed  as  an  advance- 
ment when  the  child's  parents  died  before  the  decease  of 
the  grandfather  ;  but  the  court  held  that  such  was  not  the 
case.     "  Gifts  to  grandchildren,"  said    the  court,  "  made 
whilst  their  parent,  the  immediate  descendant  of  the  party 
making  the  gifts,  is  alive,  will  not  be  converted  into  ad- 
vancements to  such  grandchildren  by  the  subsequent  death 
of  the  parent  during  tlie  lifetime  of  the    grandjDarent. 
Such  gifts  are  mere  gratuities  at  the  time  they  are  made, 
and   chargeable  neither  to  the  grandchildren  nor  their 
parents,  and  subsequent  events  cannot  and  do  not  change 
their   legal  character,  and  none  of  the  grandchildren  of 
the  intestate  can  be  properly  charged  with  gifts  made 
by  him  under  the    circumstances."     In  this  same  case 

1  Rev.  Code,  1854,  p.  249.  sect.  1,  rule  2. 

^Headen  v.  Headen,  7  Ired.  Eq.  159  ;  Shiver  v.  Brock,  2  Jones  Eq.  137  ;  Daves 
V.  Haywood,  1  Jones  Eq.  253 ;  Arrington  v.  Dortch,  77  N.  C.  367. 
3E.  S.,chap.  30,  sect.  17. 


526  Advancements. 

the  grandfather  had  conveyed  land  to  his  son-in-law 
after  his  daughter's  death,  and  it  was  sought  to 
charge  the  grandchildren  with  this  real  estate  as  an 
advancement.  The  court  admitted  that  the  conveyances, 
if  made  to  the  son-in-law  during  the  life  of  the  daughter 
(their  mother)  would  have  operated  as  an  advancement, 
but  held  that  having  been  made  after  her  death  they 
could  not  be  charged  with  it  as  an  advancement.^ 

541.  Advancemeistt  to  Parent  when  Grandparent 
Leaves  Surviving  Him  Only  Grandchildren. — 
Where  the  statute  provided  that  if  the  intestate  left  only 
grandchildren  they  should  inherit  equally  from  him,  and 
a  statute  provided  that  "  advancements  in  real  or  personal 
property  shall  be  charged  against  the  child  or  descendants 
of  the  child  to  whom  the  advancement  is  made,  in  the 
division  or  distribution  of  the  estate,"  it  was  decided 
that  the  statute  quoted  had  no  application  to  an  instance 
where  a  grandparent  left  surviving  him  only  grand- 
children, although  he  had  advanced  the  parent  of  one  of 
such  grandchiklren,  and  that  such  grandchildren  took 
equal  portions  without  any  reference  to  any  advancement 
that  had  been  made  to  their  parents.^  This  was  put  upon 
the  ground  that  the  grandchildren  inherited  directly  from 
their  grandparent  and  not  through  their  parents.^ 

542.  Payment  to  Son-in-Law  as  an  Advancement 
TO  Daughter. — Owing  to  the  fact  that  a  husband  for- 
merly had  the  right  to  all  the  personal  property  pos- 
sessed by  liis  wife  at  their  marriage,  and  to  the  rents 
and  profits  of  her  real  estate,  and  also  to  all  personal 
pro^Derty  acquired  by  her  during  their  marriage  as  well 
as  to  the  rents  and  profits  of  real  estate  acquired  by  her 

'  Stevenson  v.  Martin,  11  Bnsii.  4S5. 
'■'Brown  v.  Taylor,  62  Ind.  295. 

^  A  similar  decibion  was  reached  in  Pennsylvania  :  Person's  Appeal,  74  Pa.  St. 
121  ;  Storey's  Appeal,  83  Pa.  St.  89. 


Origin  and  Essentials  of  Advancements.        527 

during  that  period,  it  became  a  rule  of  presumption  acted 
upon  by  the  courts  that  the  giving  of  property  by  a  father  to 
his  son-in-law  as  an  advancement  to  the  son-in-law's  wife 
would  be  considered  an  advancement  to  her.  In  a  Kentucky 
case  the  rule  was  well  stated:  "A  gift  of  money  or  other 
personal  property  to  the  husband  of  the  donor's  daughter 
would,"  said  the  court,  "if  not  otherwise  intended,  be  an  ad- 
vancement to  such  daughter,  though  the  husband,  by  wast- 
ing or  losing  it,  might  j)revent  his  wife  from  deriving  any 
benefit  from  it.  So  land  given  in  frank-marriage  to  the 
husband  and  wife  and  to  the  survivor  of  them  and  their 
issue  in  tail — the  wife  beino-  the  dauo-hter  of  the  oiyer — 
would  be  an  advancement  to  her  to  the  full  extent  of  the 
value  of  the  entire  estate,  although  the  husband  might 
survive  her,  and  might  also  dock  the  entail,  and  thereby 
monopolize  the  whole  estate ;  yet,  in  distributing  her  in- 
testate father's  estate,  her  children  would  be  charged  with 
the  value  of  the  estate  thus  enjoyed  and  converted  by  her 
father,  because  their  grandfather  so  intended  and  pro- 
vided, and  because  the  object  of  the  statute  was  to  dis- 
tribute his  estate  as  he  himself  would  have  done  or  may 
be  presumed  to  have  intended.  Nor  could  we  doubt  that 
a  conveyance  of  the  land  to  the  husband  of  the  conveyor's 
dau2:hter  in  consideration  onlv  of  his  beins;  her  husband 
should  be  considered  an  advancement  to  her,  just  as  much 
as  if  the  conveyance  had  been  to  herself  alone,  or  to  her 
and  her  husband  as  tenants  by  the  entirety."  ^  This  was 
said  in  a  case  where  the  father  had  orally  promised  his 
son-in-law  to  convey  land  to  him  as  an  advancement  to 
his  wife,  the  donor's  daughter,  and  had  put  him  in 
possession  of  the  land  in  furtherance  of  the  promise. 
The  conveyance  was  not  executed  until  after  her 
death ;  yet  it  was  held  to  be  an  advancement  to  her, 

>  Barber  v.  Taylor,  9  Dana,  84. 


528  Advancements. 

binding  on  her  children,  though  their  father  got  the 
fidl  benefit  of  the  advancement.  "The  doctrine  of 
the  decisions  is,"  said  the  court  in  a  later  case,  "  that 
the  intention  of  the  donor  to  advance  his  daughter 
will  be  presumed  from  the  fact  that  he  conveys  to 
her  husband  upon  the  sole  consideration  of  the  exist- 
ence of  the  marriage  relation  between  tliem."^  Thus 
where  the  son-in-law  borrowed  of  his  wife's  father  cer- 
tain sums  of  money,  and  gave  his  notes;  and  afterward 
the  payee  delivered  them  up  to  his  son-in-law,  forgiving 
their  obligation  as  an  advancement  to  his  daughter,  it  was 
held  that  it  was  a  valid  advancement  to  her.^  In  all  these 
cases  the  presumption  may  be  rebutted.^  In  the  cases 
cited  the  consent  oi-  acquiescence  of  the  daughter  was  not 
deemed  essential ;  but  the  modern  cases  require  her  con- 
sent, which  may  arise  out  of  a  mere  acquiescence.  The 
person  claiming  that  the  gift  was  an  advancement  must 
show  that  she  knew  of  it  and  either  expressly  consented 
thereto  or  acquiesced  therein.  This  acquiescence  may  be 
inferred  from  facts  and  circumstances  inconsistent  with  a 
lack  of  such  knowledge  and  assent.^     So  if  a  father-in- 

1  Stevenson  v.  Martin,  11  Bush.  485;  Stewart  v.  Paitison,  8  Gill  (Md.),  46; 
Bridgers  v.  Hutchins,  11  'red.  L.  68;  Wilson  v.  Wilson,  18  Ala.  176;  Baker  v. 
Leathers,  3  Ind.  558;  McDearman  v.  Hodnett,  83  Va.  281 ;  Towles  v.  Eoiindtree, 
10  Fla.  299;  Bruce  v.  Slemp,  82  Ya.  352;  Wanmaker  v.  VanBuskiik,  1  N.  J.  Eq. 
685 ;  S.  C.  23  Am.  Dec.  748  ;  Lindsay  v.  Piatt,  9  Fla.  150  (forgiving  husband's 
debt  to  intestate)  ;  Dilley  v.  Love,  61  Md.  603,  612 ;  James  v.  James,  41  Ark.  301 ; 
Pecquet  v.  Pecquet,  17  La.  Ann.  204   229. 

^Bridgers  v.  Hutchins,  11  Ired.  L.  68.  If  a  father  is  indebted  to  a  son-in-law 
and  delivers  to  him  property,  it  will  be  presumed  that  it  was  in  payment  of  the 
debt  and  not  an  advancement  to  the  daughter  :  Haglar  v.  McCombs,  66  N.  C.  345. 
In  North  Carolina  a  gift  of  slaves  to  a  daughter  as  an  advancement  was  binding 
on  her,  though  her  husband  look  possession  of  them  and  retsiined  tliem  until  her 
death.  On  her  death  they  became  his  property  :  Hinton  v.  HInton,  1  Dev.  & 
Bat.  Eq.  587  ;  Harrington  v.  Moore,  3  Jones  L.  56.  When  the  wife  dies  before  the 
donor,  yet  it  is  still  an  advancement:  Towles  v.  Eoundtree,  10  Fla.  299. 

•^  Needles  v.  Needles,  7  Ohio  St.  432. 

*Dittoe  V.  Chmey,  22  Ohio  St.  436;  Oakey's  Estate,  1  Bradf.  281;  Slump  v. 
Stump,  26  Ohio  St.  169. 


Origin  and  Essentials  of  Advancements.        529 

law  takes  his  son-in-law's  note,  the  presumption  is  that 
the  transaction  is  a  loan  and  not  an  advancement  to  his 
wife/  So  merely  showing  a  conveyance  of  real  estate  by 
the  father-in-law  to  the  son-in-law  is  not  sufficient  to 
raise  the  presumption  of  an  advancement  to  the  donor's 
daughter ;  ^  nor  is  the  wife  chargeable  with  money  paid 
by  her  deceased  father  as  the  surety  of  her  husband,  as 
an  advancement,^  unless  something  else  is  shown.'^  This  is 
undoubtedly  the  better  rule,  and  especially  in  case  of  a 
gift  of  real  estate.  Speaking  of  the  difference  between  an 
advancement  of  personal  and  real  property,  the  SujDreme 
Court  of  North  Carolina  said  :  ''  If  personal  j)roperty  be 
given  to  a  wife,  it  instantly,  jure  mariti,  belongs  to  the 
husband ;  so  it  is  immaterial  whether  the  gift  be  made  to 
the  wife  or  to  the  husband.  But  if  land  be  given  to  the 
wife,  it  remains  hers,  and  the  husband  can  only  become 
entitled  to  a  life  estate  as  tenant  by  the  curtesy  ;  whereas, 
if  it  be  conveyed  to  the  husband,  the  wife  takes  nothing, 
save  a  collateral  right  to  have  dower  in  case  she  survives ; 
so  it  cannot  be  said  in  any  sense  that  she  has  received  of 

1  West  V.  Bolton,  23  Ga.  531. 

^  Kains  v.  Hays,  6  Lea.  303. 

^  Kains  v.  Hays,  supra. 

*  Rains  v.  Hays,  2  Teiin.  Ch.  669.  Where  a  father  conveyed  to  his  son-in-law  a 
tract  of  land  in  consideration  of  the  payment  of  $17,000  ;  and  afterward,  with  her 
consent,  released  $5,000  as  an  advancement  to  her;  and  then  the  son-in-law  resold 
the  land  to  the  father-in-law  for  $18,000,  and  died;  it  was  held  that  tlie  wife 
could  not  recover  of  his  administrator  the  $5,000  advancement :  Stumph  v.  Stumpli, 
26  Ohio  St.  169.  So  where  D,  the  husband  of  S,  received  from  W,  the  fatlier  of 
S,  money  and  property  as  advancements  for  S,  as  her  share  of  the  estate  of 
W,  D  was  held  to  hold  the  same  for  S ;  and,  upon  the  death  of  W,  when  the 
amount  of  her  distributive  share  was  ascertained  and  rendy  for  payment,  S  had 
a  right  to  compel  D  to  account  for  and  pay  to  her  such  money  and  property,  or 
she  might  demand  and  collect  her  share  in  full  from  W's  administrator  ;  and  in 
such  a  case,  S  having  elected  to  sue  the  administrator,  and  having  compelled  him 
to  pay  lier  the  distributive  share  in  full,  including  the  amount  of  .such  ndvance- 
raents,  by  operation  of  law,  was  subrogated  to  the  rights  and  remedies  of  S  against  D 
as  to  sjch  advancement :  Stayner  v.  Bower,  42  Ohio  St.  314. 

34 


530  Advmicements. 

her  father  any  land  by  way  of  advancement."  ^  In  view 
of  the  recent  married  woman's  property  statutes,  whicli 
enable  her  to  hold  and  control  property  as  distinctively 
as  her  own  as  if  she  were  unmarried,  and  which  she  of 
her  own  free  will  may  dispose  of,  exce23t  in  the  case  of  real 
estate,  without  her  husband's  consent,  it  may  well  be 
doubted  if  a  gift  to  her  husband  can  any  longer  be  con- 
strued as  an  advancement  to  her,  unless  it  is  shown  that 
she,  before  the  gift  was  made,  consented  that  it  might  be 
so  made  and  thereafter  charged  up  against  any  portion 
she  might  be  entitled  to  receive  from  her  parent's  estate.^ 

'So  it  was  held  that  a  conveyance  of  land  to  a  son  in-law  is  not  to  be  reckoned 
as  an  advancement  to  the  daughter,  who,  at  tlie  death  of  her  father,  was  married 
to  a  second  husband:  Banks  i>.  Shannonhouse,  Phillips  L.  (N.  C.)  284. 

'^But  see  contra,  Lindsay  v.  Piatt,  9  Fla.  150,  and  Towles  v.  Roundtree,  10  Fla. 
299.  Where  a  testator  by  his  will  created  a  fund  and  directed  the  trustee  of  it 
to  pay  over  to  each  of  his  children  a  certain  sum,  but  provided  tliat  "any  legal 
debt  due  from  either  of  said  children  to  my  estate  at  the  time  of  my  decease  sliall 
first  be  deducted  by  said  trustee,  and  the  balance  only  be  paid  over  to  such  child 
as  aforesaid;"  and  at  the  time  the  will  was  executed  one  of  his  daughters  had 
executed  with  her  husband  notes  to  the  amount  of  $15,000  for  money  furnished 
him  by  the  testator,  but  the  testator  had  taken  no  notes  from  her  for  money 
advanced  to  her,  and  there  were  no  other  debts,  either  when  the  will  was  exe- 
cuted ur  at  any  time  thereafter,  due  him  from  any  of  his  children  unless  a  similar 
note  executed  by  another  daughter  was  regarded  as  a  debt — it  was  held  that  these 
notes  could  not  be  deducted  from  the  amount  due  her,  on  the  ground  that  it  was 
an  advancement ;  for  the  testator  having  declared  tiiat  all  "legal  debts"  should 
be  deducted,  and  these  notes  not  being  "legal  debts"  as  against  her,  they  were 
not  such  as  the  will  directed  to  be  deducted  :  Rogers  v.  Daniell,  8  Allen,  343.  In 
respect  to  gifts  to  the  husband  being  advancements  of  the  donor  to  his  daughter^ 
the  wife  of  the  husband,  so  far  as  the  daughter  is  bound  thereby,  there  is  but  little 
difference  in  principle  between  an  ademption  and  an  advancement.  We,  there- 
fore, give  a  few  cases  of  ademption.  Thus,  in  Ravenscroft  v.  Jones,  32  Beav.  669  ; 
S.  C.  4  De  Gex,  J.  &  S.  224,  a  father  g^ve  his  daughter  a  legacy  of  £700.  The 
daughter  having  become  engaged  thereafter,  the  father,  on  her  marriage,  gave  her 
£100,  and  after  the  marriage  gave  her  husband  £400  in  cash.  The  Master  of  the 
Rolls  held  that  the  £100  was  a  gift,  and  so  was  the  £400.  On  appeal  one  judge 
coincided  with  this  view,  but  expressly  refused  to  put  his  decision  as  to  the  £400, 
upon  the  fact  that  it  was  paid  to  the  son-in-law  and  not  to  the  daughter;  while 
another  judge  held  that  upon  all  the  facts,  even  if  it  had  been  paid  to  the  daugh- 
ter, there  was  only  a  gift.  A  third  judge  held  that  it  was  an  advancement.  In 
Booker  v.  Allen,  2  Russ.  &  M.  270,  a  testator  gave  to  a  person  to  whom  he  stood 


Origin  and  Essentials  of  Advancements.         531 

543.  Mother's  Gift  to  Child  as  an  Advancement. 
— The  moral  obligation  resting  upon  a  mother  to  make 
provision  for  her  child,  especially  for  her  son,  has  always 
been  regarded  as  weaker  than  that  of  a  father ;  and  es- 
pecially is  this  true  where  the  gift  is  of  land.  The  Eng- 
lish authorities  are  unquestionably  to  the  point  that  mere 
proof  of  a  conveyance  to  the  child  by  a  mother,  or  a  pur- 
chase by  the  mother  in  the  name  of  her  child,  will  not 
raise  a  presumption  of  an  advancement  or  a  gift ;  but 
very  slight  additional  evidence  that  it  was  to   be  so  con- 

in  loco  parentis  £4,000,  the  income  of  which  was  to  lie  paid  to  l\er  separate  use, 
and  on  iier  death  the  principal  to  be  divided  amonj;  her  children.  On  her  mar- 
riage the  testator  executed  a  marriage  settlement,  giving  £4,000  to  trustees,  the 
income  of  which  was  to  be  paid  her  husband  for  life,  then  on  his  death  to  his 
wife  for  life,  and  on  her  death  the  principal  to  go  to  their  children.  Tiiis  settle- 
ment was  accompanied  by  a  verbal  declaration  of  the  testator  that  it  was  intended 
by  him  in  lieu  of  the  legacy ;  and  it  was  so  held.  A  similar  case  is  Carver  v. 
Bowles,  2  Russ.  &  M.  301.  In  Kirk  v.  Eddowes,  3  Hare,  509,  a  father  had  given 
by  will  £3,000  to  his  daughter  for  her  separate  use,  with  a  remainder  to  her 
children.  On  her  subseq^ueut  marriage  and  after  the  execution  of  the  will,  lie 
gave  to  his  daughter  and  her  husband  a  promissory  note  of  a  third  person,  then 
due  the  testator,  for  £500.  The  wife  had  requested  her  father  to  give  her  hus- 
band the  sum,  and  he  did,  declaring  at  the  time  that  it  was  in  part  satisfaction  of 
the  legacy ;  and  it  was  so  held.  In  Ferris  v.  Goodburn,  27  L.  J.  N.  S.  574, 
a  father  bequeathed  his  unmarried  dmghter  a  legacy.  She  then  married,  and  he 
subsequently  gave  to  her  husband  £800,  in  different  sums,  to  be  used  by  him  in  his 
business.  Tliis  gift  or  payment  was  made  at  the  husband's  request,  and  it  was 
not  shown  that  it  was  to  be  applied  on  tiie  legacy;  but  it  was  held  that  this  was 
an  adetiijition  of  the  legacy  pro  tanto.  "There  was  no  reason,"  said  the  court, 
"  for  giving  money  to  Ferris  [the  husband]  except  that  he  had  married  the  tes- 
tator's daughter ;  and,  connecting  these  gifts  with  the  marriage  and  the  request 
made  by  the  husband,  it  is  impossible  to  say  that  the  presumption  of  satisfaction  is 
not  raised  or  that  parol  evidence  is  not  admissible,  and.  there  being  no  evidence 
to  rebut  the  presumption,  there  must  be  a  declaration  that  tlie  legacy  was  adeemed 
to  the  extent  of  £800."  In  Nevin  v.  Drysdale,  L.  R..4  Eq.  517,  a  father  gave  by 
will  to  liis  daughter  £500  in  case  slie  should  marry.  She  then  married,  and  two 
months  after  the  marriage  the  father  gave  the  husband  £400  for  furnishing  a 
house,  and  promised  a  further  sum  of  £600,  which  he  never  paid,  dying  soon 
after  the  promise.  It  was  held  tliat  the  legacy  to  the  daughter  was  adeemed 
pro  tanto.  If  payment  be  made  to  the  husband  before  the  execution  of  the  will, 
there  is  no  satisfaction  or  ademption  of  the  legacy :  Lyon's  Est ,  70  la.  375.  On 
general  subject,  see  Paine  v.  Parsons,  14  Pick.  318. 


532  Advancements. 

sidered  "will  turn  the  scale  in  favor  of  the  claim  that  the 
transaction  is  a  gift  or  advancement.^ 

544.  Gift  to  Stkangee. — The  father  cannot  by  a 
gift  to  a  stranger  make  it  an  advancement  to  his  own 
child.^  The  law  requires  the  gift  to  be  made  to  the  per- 
son who  would  inherit  from  the  donor  if  he  die  intestate.^ 
But  if  the  child  agree  at  the  time  the  gift  is  made  that  it 
may  be  so  made,  and  the  gift  shall  be  deducted  from  any 
amount  he  in  the  future  may  inherit  from  the  donor,  then 
he  will  be  bound  thereby,  and  it  will  be,  in  effect,  an  ad- 
vancement to  liim.^ 

545.  Gift  Must  be  Out  of  Donor's  Ow^x  Property. 
— To  be  a  valid  advancement  it  must  be  of  the  donor's  own 
property,  and  not  out  of  property  over  which  the  donor 
may  have  the  right  of  disposal  or  appointment.  "  There 
are  certain  essential  elements,"  said  the  Supreme  Court 
of  South  Carolina,  "  which  every  advancement  must 
l^ossess,  one  of  which  is  that  it  must  once  have  been  a  part 
of  the  ancestor's  estate,  which  upon  his  death  Avould  de- 
scend to  his  heirs  but  for  the  fact  that  it  has,  by  the  act  of 
the  ancestor  in  making  the  gift,  been  separated  from   or 

1  Re  De  Visme,  2  De  G.,  J.  &  Sm.  17  ;  S.  C.  33  L.  J.  Ch.  332 ;  Bennet  v.  Ben- 
net,  10  Ch.  Div.  474 ;  S.  C.  27  W.  R.  573 ;  40  L.  T.  N.  S.  378  ;  Re  Orme,  50  L.  T.  N. 
S.  51  ;  but  see  Sayre  v.  Hughes,  5  L.  R.  Eq.  376  ;  S.  C.  37  L.  J.  Ch.  401 ;  1(3  W. 
R.  662  ;  IS  L.  T.  N.  S.  347  ;  Batstone  v.  Salter,  10  L.  R.  Ch.  App.  431  ;  Watson 
V.  Murray,  54  Ark.  499.  The  rule  does  not  apply  to  a  step-mother :  Tockl  v. 
Moorhouse,  19  L.  R.  Eq.  69;  Giirrett  r.  Wilkinson,  2  De  G.  &  Sm.  244;  Re 
Orme,  50  L.  T.  N.  S.  51  (a  widowed  mother).  In  South  Carolina  it  is  held  that 
the  statute  of  distributions  applies  to  a  mother:  Rees  v.  Rees,  11  Rich.  Eq.  86. 
Can  a  married  woman  make  an  advancement  ?  It  would  seem  not :  Bucknor's 
Estate,  7  Pa.  C.  C.  361. 

^  Alleman  v.  Manning,  44  Mo.  A{)p.  4. 

'  Rains  v.  Hays,  2  Tenn.  Ch.  669,  674  ;  Chase  v.  Bot,  1  Eq.  Cas.  Abr.  155 ; 
Dupuy  V.  Dupont,  11  La.  Ann.  226  ;  Annand  v.  Honeywocd,  1  Eq.  Cas.  Abr.  153. 

*Bridgers  v.  Hutchins,  11  Ired.  Eq.  6S;  Dittoe  r.  Cluney.  22  Ohio  St.  436 ; 
Barbor  v.  Taylor,  9  Dana,  84  ;  Lindsay  v.  Piatt,  9  Fla.  150.  See  Stevenson  v. 
Martin,  11  Bush.  485  ;  Shiver  v.  Brock,  2  Jones  Eq.  137. 


Origin  and  Essentials  of  Advancements.        533 

taken  out  of  his  estate,  or  it  must  be  something  which  is 
purchased  with  the  funds  of  the  father  in  the  name  of 
and  for  the  benefit  of  the  chikh"  ^ 

546.  Gift  Must  be  Perfected  ix  Lifetime  of 
DoNOK — Rents  and  Profits  of  Keal  Estate. — Every 
advancement  must  be  a  perfected  gift ;  and  as  a  gift  can 
only  be  made  by  the  donor,  it  is  clear  that  an  ad- 
vancement not  perfected  in  his  lifetime  cannot  be  con- 
sidered such  after  his  death.^  If  the  gift  is  void,  then 
the  donee  must  account  to  the  donor's  personal  represen- 
tative for  all  2)roperty  received  under  it,^  The  ancestor 
has  no  control  over  a  perfect  advancement,  either  during 
his  lifetime,*  or  by  will  after  his  deatli.^  But  where  the 
gift  was  of  land,  and  void,  and  the  donor  afterward  sold 
the  land  and  gave  half  the  purchase-money  to  the  donee, 
the  gift  of  the  purchase-money  was  held  to  be  an  advance- 
ment to  the  amount  paid,  although  the  payment  Avas 
made  in  Confederate  currency.^  So  where  the  gift  was 
void,  but  the  donee  held  and  claimed  the  property  given 

'  Rickenbacker  i;.  Zimmerman,  10  S.  C.  110;  Fennell  v.  Henry,  70  Ala.  484; 
Callender  v.  McCreary,  4  How.  (Miss.)  356.  A  woman  executed  an  imperfect  will 
giving  to  certain  children  her  pro[)erty.  The  will  failed  for  want  of  execution, 
and  the  father  of  the  children  and  his  sister  inherited  the  property.  The  father 
and  living  sister  then  executed  a  deed  to  the  ciiildren,  in  order  to  carry  out  the 
intention  of  the  dead  sister.  It  was  held  that  the  property  the  father  thus  in- 
herited and  cnnveyed  was  not  an  advancement:  HoUister  v.  Attmore, 5  Jones Eq- 
373.  A  parent  had  power  to  distribute  a  fund  among  his  children.  He  paid 
one  of  them  a  sura  out  of  his  own  property  equal  to  the  child's  share  of  the  fund. 
It  was  held  that  this  was  not  an  apportionment  of  the  fund:  Brownlow  v.  Meatli, 
2  Ir.  Eq.  383 ;  S.  C.  Dr.  &  Wal.  674. 

2  FennelH'.  Henry,  70  Ala.  484;  Joyce  v.  Hamilton,  111  Ind.  163;  Neely  r. 
Wood,  10  Yerg.  485:  Herkimer  v.  McGregor,  126  Ind.  247  ;  Yancy  v.  Yancy,  5 
Heisk.  353;  Crippen  v.  Bearden,  5  Humph.  128;  Williams  v.  Mears,  2  Dis.  604, 
614;  S.  C.  4  West.  L.  Mag  293;  Meadows  v.  Meadows,  11  Ired.  L.  148  ;  Crosby 
V.  Covington,  24  Miss.  619  ;  Phillips  v.  McLaughlin,  26  Miss.  592. 

3  Shaw  V.  Shaw,  6  Humph.  418. 

*  Phillips  V.  McLaughlin,  26  Miss.  592. 
5  Black  V.  Whitall,  1  Stock.  (N.  J.)  572. 
fi  West  I'.  Jones,  85  Va.  616. 


534  Advancements. 

as  his  own,  thus  holding  adversely  to  the  donor,  until  his 
title  thereto  was  perfected  by  the  running  of  the  statute 
of  limitations,  it  was  held  that  he  must  account  for  the 
property  on  advancement/  So  where  the  gift  of  the  land 
was  void,  but  the  donee  went  into  possession  and  received 
the  rents  and  profits  thereof,  such  rents  and  j^i'olits 
thus  received  during  the  lifetime  of  the  donor  were  charged 
against  the  donee  as  an  advancement.  It  was  also  hekl 
in  the  same  case  that  when  the  donor  rented  to  the  donee 
certain  land,  the  rent  to  be  paid  by  improvements  to  be 
made  on  the  land  ;  and  the  donee  occupied  the  premises 
seven  years  and  made  improvements  thereon  worth 
$2,500 ;  and  afterward  the  donor  made  a  settlement  with 
the  donee  and  executed  to  him  a  receipt  in  full,  the  donee 
could  not  be  charged  with  advancements,  though  it  was 
shown  that  the  rents  were  annually  worth  $550  a  year.^ 

547.  Donor  Must  Die  Intestate. — To  constitute  a 
case  of  advancement  the  donor  must  have  died  intestate. 
Such  is  the  language  of  the  English  Statute  of  Distributions. 
Where  a  will  is  made  and  then  the  gift,  the  question  is 
one  of  ademption,  and  not  advancement.^ 

1  O'Neal  V.  Breecheen,  5  Bast.  604.  In  Long  v.  Long,  118  111.  638,  it  was  held 
that  an  advancement  which  is  not  evidenced  in  the  manner  required  by  the  statute 
is,  in  legal  effect,  no  advancement  at  all,  however  clearly  it  may  appear  it  was  so 
intended  :  Reversing  30  111.  App.  559. 

-  Wakefield  v.  Gilleland,  18  S.  W.  Rep.  7GS  ;  Robinson  v.  Robinson,  4  Humph. 
392. 

On  the  question  of  rents  generally,  see  Shawhan  r.  Shawhan,  10  Bush.  600 ; 
Evans  v.  Evans,  1  Heisk.  577.  See  Ford  v.  Thompson,  1  Met.  580  ;  Clarke  v.  Clarke, 
17  B.  Mon.  698  ;  Montjoy  v.  Mnginnis,  2  Duv.  180.  In  this  last  case  the  heirs  of  the 
donor  refused  to  perfect  the  gift  of  real  estate  made  by  the  parent,  and  the  court 
declined  to  charge  the  donee  with  the  lents  and  profits  as  an  advancement. 

The  wife  cannot  make  an  advancement  to  a  child  of  her  husband's  property 
when  he  is  insane,  though  that  was  clearly  his  intention  before  his  infirmity  came 
upon  him :  Bailey  r.  Bailey,  6  Conn.  308. 

marshal!  v.  Bench,  3  Del.  Ch.  2.39,  254;  Newell's  Will,  1  Brown  (Pa.\  311  ; 
McDougald  i'.  King,  1  Bail.  Ch.  154  ;  Newman  v.  Wilbourne,  1  Hill  Ch.  10  ;  Rains- 
ford  V.  Rainsford,  Speer  Eq.  385 ;  Allen  v.  Allen,  13  S.  C.  512. 


Origin  and  Essentials  of  Advancements.        535 

548.  Partial  Ixtestacy. — The  question  whether  the 
law  of  advancements  applies  to  a  case  of  partial  intestacy 
is  one  of  importance,  and  often  depends  upon  the  statutes 
in  force  at  the  place  of  distribution.  In  North  Carolina 
the  statute  provided  that  advanced  heirs  should  be  charged 
with  such  advancements  where  the  donor  died  "  intestate;" 
and  this  was  held  to  mean  ivholly  intestate.  In  this  case 
the  testator  bequeathed  certain  slaves,  but  before  he  died, 
and  after  he  executed  his  will,  these  slaves  had  children, 
and  this  was  held  to  render  the  statute  with  reference  to 
distributions  inapplicable.^  Such  is  the  rule  under  the 
English  Statute  of  Distributions.^  In  South  Carolina,  un- 
der a  similar  statute,  a  like  rule  prevails.^  It  would  seem 
but  reasonable  that  if  a  testator  disposed  of  a  part  of  his 
estate,  and  died  intestate  as  to  the  remainder,  then  any 
heir  advanced  previous  to  the  execution  of  the  will  should 
be  charged  with  such  advancement  in  the  disposition  of 
that  part  of  the  estate  not  disposed  of  by  the  will ;  but 
such  is  not  the  rule,  and  the  advanced  heir  cannot  be 
called  to  an  account.* 

1  Richmond  v.  Vanliook,  3  Ired.  Eq.  581;  Hurdle  v.  Elliott,  1  Ired.  L.  176; 
Donnell  v.  Mateers,  5  Ired.  Eq.  7  ;  Hayes  v.  Hibbard,  3  Kedf.  28.  See  Ilawley  v. 
James,  5  Paige,  318;  Thompson  v.  Carmichael,  3  Saudf.  Ch.  120;  Turpia  v.  Tur- 
pin,  88  Mo.  337. 

2  Vachell  v.  Jeffreys,  Pres.  Ch.  170 ;  S.  C.  2  Eq.  Cas.  Abr.  435,  pi.  7 ;  Walton  v. 
Walton,  14  Ves.  317,  322. 

^Snelgrove  v.  Snelgrove,  4  De  S.  274.  See  McNeil  v.  Hammond,  87  Ga.  618. 
In  Ohio,  where  a  father  supposed  he  had  disposed  of  all  his  estate,  but  by  mis- 
take omitted  the  residuary  clause  in  his  will,  it  was  held  that  the  statute  concern- 
ing advancements  did  not  apply:  Need  es  v.  Needles,  7  Ohio  St.  432.  In  Georgia 
it  was  said  that  "  if  a  testator  dies  intestate  purpose  y,  as  to  part  of  his  estate,  and 
he  gives  parts  of  his  estate  to  children  who  would  be  distributees  of  his  estate 
if  he  had  died  intestate  as  to  iiis  whole  property,  and  who  would  share  with  other 
children  to  whom  nothing  is  L'iven  by  the  will,  it  must  be  presumed  that  he  in- 
tended to  give  some  of  his  childi-en  an  advantage  over  the  rest :"  Walker  v.  Wil- 
liamson, 25  Ga.  5^9. 

*  Donnell  v.  Mateers,  5  Ired.  Fq.  7;  .lohnston  ?•.  Jobnston.  4  Ireri.  Eq  0 :  Wat- 
son V.  Watson,  14  Ves.  317  ;  Cowper  v.  Scott.  3  Pr.  Wms.  119;  Brown  r.  Brown.  2 
Ired.  Eq.  309.     The  case  of  Norwood  v.  Branch,  2  No.  Cas.  59S,  is  ovcrruU-d      In 


536  Advancements. 

549.  Will  Executed  After  Adyaxcemext  Made. — 
If  a  father  give  his  child  a  sum  of  money  by  way  of  ad- 
vancement, and  afterward  execute  his  will  devising  his 
estate  to  his  children  in  certain  shares,  but  says  nothing 
about  the  advancement  to  the  child  thus  advanced,  such 
advancement  cannot  be  deducted  from  the  amount  re- 
ceived by  such  child  under  the  will ;  for  it  is  conclusively 
presumed  that  this  child  was  to  receive  the  amount  thus 
advanced  in  addition  to  that  given  by  the  will.  But  if 
the  testator  fix  a  value  in  his  will  upon  the  amount  thus 
given,  and  declare  that  the  amount  thus  fixed  shall  be 
deemed  an  advancement,  then  to  the  amount  thus  fixed 
it  must  be  so  deemed,  and  the  donee  is  bound  by  the 
words  of  the  will.^  So  where  a  father  in  his  will  directed 
his  executor  to  sell  all  his  real  and  personal  estate,  and 
divide  the  proceeds  of  the  sale  equally  among  all  his  chil- 
dren, naming  them ;  and  prior  to  his  death  he  had  ad- 
vanced various  sums  of  money  to  several  of  his  children 
and  taken  from  them  receipts  acknowledging  the  receipt 
of  the  different  sums  "as  my  apportionment  of  his  estate  " 
''  to  be  deducted  out  of  the  estate  of  the  said  "  donor,  it 
was  held  that  the  will  did  not  direct  these  advances  to 
be  charged  against  the  several  children,  and  they  were 

some  States  children  provided  by  will  must  bring  in  the  property  received  under 
the  will  if  they  desire  to  share  in  the  undevised  estate:  Sturdevant  v.  Goodrich, 
3  Yerg.  95 ;  Pearce  v.  Gleaves,  10  Yerg.  3.39  ;  Gold  r.  Vauglin,  4  Sneed,  245  ; 
Perry  v.  High,  3  Head.  349 ;  Vance  v.  Huling,  2  Yerg.  135 ;  Farnsworth  v.  Dins- 
more,  2  Swan.  38. 

For  a  construction  of  the  phrase,  '*  Father's  estate,"  see  AVilson  v.  Miller,  1  P. 
&  H.  (Va.)  353. 

In  Maryland  the  statute,  it  would  seem,  does  not  apply  to  a  case  of  partial  in- 
testacy: Hayden  v.  Burch,  9  Gill,  79 ;  Stewart  v.  Pattison,  8  Gill,  46 ;  Manning  v. 
Thurston,  59  Md.  218;  Pole  v.  Simmons,  45  Md.  246. 

^Arnold  v.  Haronn,  43  Hun,  278 ;  Jones  )•.  Eichardson,  5  Met.  247  ;  Tliomp- 
son  V.  Carmichael,  3  Sandf.  120  ;  Clark  v.  Kingsley,  37  Hun,  240  ;  Hays  v.  Hib- 
bard,  3  Ptedf.  28  ;  Hine  v.  Hine,  39  Barb.  507  ;  Kreider  v.  Boyer,  10  Watts,  54  ; 
Proseus  v.  Mclntyre,  5  Barb.  424 ;  Zeiter  v.  Zeiter,  4  Watts,  212. 


Origin  and  Essentials  of  Advancements.        537 

not  to  be  considered  in  dividing  the  estate.^  So  where  a 
testator,  having  made  complete  transfers  of  certain  shares 
of  stock,  executed  his  will  devising  all  his  property  "  as 
provided  by  the  laws  of  the  State  of  Kew  York  in  cases 
of  intestacy,"  it  was  held  that  the  stock  could  not  be 
deemed  an  advancement.^  So  Vvdiere  the  testator  executed  a 
will  bequeathing  $1,000  to  K,  and  a  few  months  afterward 
loaned  S  $400  and  took  from  him  his  note  for  the  loan 
payable  to  K  or  bearer  which  she  handed  to  K,  and  a 
year  later  executed  another  and  last  will  by  which  she 
bequeathed  $1,000  to  K  ;  it  was  held  that  the  $400  note 
(which  was  then  paid)  should  not  be  treated  as  an  ad- 
vancement and  payment  upon  the  legacy,  for  the  last  will 
was  executed  after  the  gift  was  made.^  So  where  a  will 
directed  that  the  testator's  property  should  be  distributed 
equally  among  his  six  sons,  and  also  provided  that 
"  whatever  obligations  shall  be  found  that  I  hold  against 
my  sons  for  whatever  I  have  let  them  have  heretofore 
shall  be  considei'ed  as  my  propei'ty  and  shall  be  considered 
as  their  legacy,  in  whole  or  in  part,  as  the  case  may  be  ;" 
and  it  appeared  that  one  of  the  sons  owed  tlie  testator  by 
notes  a  sum  larger  than  one-sixth  part  of  the  estate,  it  was 
held  that  it  was  not  the  intent  of  the  testator  to  treat  the 
notes  as  an  advancement,  but  his  design  was  that  they  should 
be  treated  as  a  legacy  to  an  amount  equal  to  the  legatee's 
share  in  the  estate  and  as  a  debt  for  the  residue.*  So  where 
a  father  had  four  sons  and  a  daughter,  and  he  gave  three 
of  his  sons  £500  each,  the  daughter  £200,  and  directed 
that  none  of  his  sons  to  whom  he  should  have  advanced 
any  sums  of  money  in  his  lifetime  should  be  entitled  to 
receive  his  legacy  of  £500  without  bringing  such  sums 

^Camp  V.  Camp,  18  Hun,  217,  reversing  2  Redf.  1-il. 
2  De  Caumont  r.  Hogert,  36  Hun,  382. 
^  Clark  V.  Kingsley,  37  Hun,  240. 
*Eitch  V.  Hawxhurst,  114  N.  Y.  512. 


538  Advancements. 

into  hotclipot ;  and  the  residue  of  his  property  be  divided 
equally  among  his  four  sons  and  daughter ;  and  the  tes- 
tator had  advanced  the  son  to  whom  he  left  no  specific 
legacy,  at  different  dates  before  the  date  of  the  will,  £728 
in  small  sums,  and  to  another  son,  who  was  given  a  spe- 
cific legacy,  was  given  two  sums  after  tlie  execution 
of  the  will  of  £500  and  £380 ;  it  was  held  that  the  ad- 
vancement to  this  son  who  was  not  given  a  specific  legacy 
sliould  not  be  taken  into  account  against  him,  for  the 
reason  that  the  testator  directed  that  none  of  his  sons  to 
whom  he  shoukl  have  advanced  any  sums  of  money  in 
his  lifetime  should  be  entitled  to  receive  his  legacy  of 
£500  without  bringing  any  such  sum  into  hotchpot,  and 
that  was  construed  to  be  a  declaration  that  only  those  sums 
advanced  toward  payment  of  the  legacy  of  £500  should 
be  deducted,  and  not  any  small  sums  that  may  have  been 
advanced.^  In  all  these  instances  only  the  will  can  be 
looked  to  in  determining  whether  or  not  the  gift  shall  be 
regarded  as  an  advancement,  and  parol  evidence  is  not 
admissible  to  show  that  the  testator  so  regarded  it.^ 

550.  To  What  Property  the  Law  of  Advance- 
ments Applies. — The  En2;lish  Statute  of  Distributions 
aj^plies  only   to  the  distribution  of  personal   property.^ 

*  Peacock's  Est.,  L.  R.  14  Eq.  Cas.  236.  See  Upton  v.  Prince,  Cas.  t.  Talb.  71 ; 
Watson  V.  Watson,  33  Beav.  574 ;  Lawrence  v.  Lindf^ay,  68  N.  Y.  108. 

''Watson  V.  Watson,  6  Watts,  254;  Trendweil  v.  Cordis,  5  Gray,  341 ;  Nichols 
V.  CofSn,  4  Allen.  27;  Strother  v.  Mitchell,  80  Va.  149;  Caylor  v.  Merchant,  5 
West  L.  Mag.  194;  Lyon's  Est.,  70  la.  :-!75;  Fiunliam  v.  Averill,  45  Conn.  61; 
Chapman  v.  Allen,  56  Conn.  152  ;  Hartwell  r.  Rice,  1  Gray,  587  ;  Jones  v.  Rich- 
ardson, 5  Met.  247  ;  Hall  v.  Hill,  1  Dru.  War.  94,  133,  S.  C.  4  Ir.  Eq.  R.  27. 

A  writing  given  by  a  child  to  a  father,  acknowledging  the  receipt  of  an  advance- 
ment, cannot  be  used  by  way  of  set-ofF  in  a  suit  by  the  child  to  recover  a  legacy 
given  to  him  in  a  will  afterward  made  by  the  father,  nor  as  evidence  of  the  pay- 
ment or  ademption  of  such  legacy  :  Jones  v.  Richanison,  5  Met.  247.  But  the 
execution  of  a  will  afterward  revoked  cannot  operate  as  an  extinguishment  or 
merger  of  an  advancement :  Hartwell  v.  Rice,  1  Gray,  587. 

='CevilIi>.  Rich.l  Vern  ISl. 


Origin  and  Essentiols  of  Advancements.        o'39 

"Whether  or  not  gifts  of  real  estate  must  be  considered  as 
advancements,  or  whether  only  real  estate  advancements 
can  be  offset  against  other  real  estate  advancements,  or 
personal  property  advancements  can  be  offset  only  against 
other  personal  property  advancements,  or  a  real  estate 
advancement  can  be  offset  by  a  personal  property  ad- 
vancement, depends  upon  the  peculiar  wording  of  the 
statute  in  force  at  the  place  of  distribution.  If  the  statute 
declares  that  the  real  or  personal  property  of  the  intestate 
shall  be  distributed  equally  among  his  heirs,  and  that 
advancements  in  either  shall  be  taken  into  consideration 
in  making  such  distribution,  then  an  advancement  in 
money  must  be  considered.^  Unless  the  statute  expressly 
refers  to  real  property,  an  advancement  in  personal  prop- 
erty cannot  be  used  to  offset  the  amount  of  the  real  estate 
that  would  otherwise  descend  to  the  person  thus  ad- 
vanced.^ So,  if  a  statute  provides  that  advancements  in 
real  estate  shall  be  considered  and  says  nothing  a})out 
advancements  in  personal  property,  a  gift  of  the  latter 
cannot  be  considered.^  Usually  the  statutes  provide  for 
advancements  in  either  real  or  personal  property ;  ^  but 
a  statute  having  reference  only  to  advancements  in  real 
estate  does  not  apply  to  the  gift  of  a  mortgage.^  The  gift 
of  a  remainder  in  pro[)erty  may  be  an  advancement-/ 
or  of  a  life  estate; '  or  the  rent  of  land  onto  which  a  hither 
has  put  a  son  ;^  or  to  life  insurance  purchased  by  the  in- 

'  Mitchell  V.  Mitcl.ell,  S  Ala.  414;  Smith  v.  Smith,  21  Al;i.  761. 

■^Havens  v.  Tiiom{isoii,  8  C.  E.  (Jr.  321 ;  Lin.  II  v  Linell,  6  C.  E.  Gr.  81; 
Davis  V.  Duke,  2  Hay.  224  (40(i) ;  Marshall  v.  Reneh.  3  Del.  Ch.  2;^9. 

^Putnam  v.  PiUikum,  18  Ohio,  347;  Myors  v.  Warner,  18  Ohio,  519;  Needles 
V.  Needles,  7  Ohio  St.  432. 

*  Needles  v.  Needles,  7  Ohio  St.  432;  Terry  ,:  D.iyton,  31  Barb.  519;  Headen 
r.  Headen,  7  Ired.  Eq.  159 ;  McRae  v.  McRae,  3  Bradf.  199. 

»  Mowry  v.  Smith    5   K.  I.  255. 

«Raifnrd  v.  Raifonl,  G  Ired.  Eq.  490;  Hiigl.ey  v.  Eichelberger,  11  S.  C.  3G. 

MVainwright's  Estate,  37  Leg.  Int.  104. 

8  Robinson  v.  Robinson,  4  Humph.  392;  Erans  v.  Evans,  1  Heisk.  577;  Wake- 


540  Advancements. 

testate  on  liis  life  in  the  name  of  the  donee,  where  the 
intestate  pays  the  premiums ;  ^  or  reservation  of  a  life 
estate  to  donor  and  wife  is  an  advancement  as  to  the 
latter ;  ^  but  not  to  the  reservation  of  the  mere  use  of  a 
slave  where  the  property  in  the  slave  is  vested  in  the 
donee's  children ;  ^  nor  to  advancements  of  real  estate 
situated  in  another  State,'^  though  the  rule  is  different  as 
to  personal  property.^  A  gift  to  a  daughter  and  her 
child  jointly,  or  to  a  daughter  and  her  husband  jointly, 
may  be  an  advancement  to  her ;  "^  so  is^  a  deposit  in  the 
joint  names  of  the  donor  and  donee."^ 

551.  Heir  Releasing  to  Ancestor  His  Prospec- 
tive Interest  in  His  Estate. — The  question  we  are 
considering  in  this  section  is  not  a  sale  of  the  heir's  pros- 
pective interest  in  his  ancestor's  estate  to  a  third  person  ; 
but  it  is  a  release  by  the  heir  to  his  ancestor  of  what  he 
would  inherit  at  such  ancestor's  death.  The  authorities 
are  one  that  a  release  by  a  child  to  a  father  or  mother, 
or  by  a  grandchild  to  its  grandparents,  of  his  expectancy 

field  V.  Gilleland,  18  S.  W.  Rep.  768;  Slmwhan  v.  Shawhan,  lU  Bush.  600.  See 
Montjoy  I'.  Maginnis,  2  Duv.  186. 

1  Rickenbacker  v.  Zimmerra  n,  10  S.  C.  110.  See  Chase's  Estate,  7  Pa.  C.  C. 
298 ;  In  re  Richardson,  47  L.  T.  N.  S.  514,  and  Worthington  v.  Curtiss,  1  Ch. 
Div.  419. 

2  Wilks  V.  Greer,  14  Ala.  4.'^7. 
^Cawthon  v.  Coppedt;e.  1  Swan.  487. 
*  McRae  v.  McRae,  3  Eradf.  11.9. 

^Blackerry  v.  Holton,  5  Dana,  520.  Contra,  Hog^rett  v.  Gibbs,  15  La.  Ann. 
700;  Succession  of  Tournillon,  15  La.  Ann.  26.3. 

^Kyle  V.  Conrad,  25  W.  V^a.  760;  Edwards  v.  Freeman,  2  P.  Wms.  4o5 ;  Wet- 
land V.  Weyland,  2  Atk.  632. 

'Talbot  V.  Codv,  L.  R.  10  Ir.  Eq.  138.  In  Illinois  the  statute  concerning 
advancements  applies  to  transactions  both  before  and  after  its  passage :  Simpson 
r.  Simpson,  114  111.  603.  See  Wallace  v.  Reddick,  119  111.  151.  An  agreement 
for  an  advancement  of  real  estate,  followed  by  possession,  will  not  be  enforced  if 
the  result  would  bring  about  an  injustice  to  the  other  heirs:  McMahill  r. 
McMahill,  69  la.  115.  But  see  when  specific  performance  will  bd  decreed: 
McFerran  v.  McFerran,  69  Ind.  29. 


Origin  mid  Essentials  of  Advancements.        o41 

in  such  father,  mother,  or  grandparent's  estate,  when 
made  in  consideration  of  a  present  benefit  bestowed,  is 
binding,  and  will  deprive  such  child  from  claiming  any- 
thing from  the  ancestor's  estate  at  his  death.^  Thus  where 
a  son  executed  a  receipt  reciting  "payment  in  full  up  to 
date  for  all  services  rendered,  and  all  claims  now  and  in 
the  future,  against  [the  ancestor]  and  his  estate,  living  or 
dead,  and  that  he  has  no  further  claim,  in  any  shape, 
manner,  or  form  against  [the  ancestor]  or  heirs  or  any 
one  else  bearing  the  name,"  it  was  held  that  the  words 
claims  and  claim  referred  to  the  interest  of  the  heir  in 
the  estate  of  the  ancestor,  and  that  the  release  was  valid, 
even  against  subsequent  attaching  creditors.^  Usually 
these  releases  are  in  w^riting,  signed  by  the  heir  expect- 
ant ;  ^  but  the  execution  of  a  deed  by  the  donor  reciting 
that  the  j^roperty  given  is  given  in  full  of  all  future  claim 
on  the  donor's  estate  is  sufficient  to  bar  the  heir  from 
setting  up  any  claim  to  the  donor's  estate  on  his  death  ;  * 
and  so  the  same  is  true  where  the  donor  executes  an  ordi- 
nary deed  and  the  donee  executes  back  a  receipt  reciting 
that  it  is  in  full  of  all  future  claims  on  the  donor's  es- 
tate ;  ^  or  the  donor  executes  back  a  deed  in  full  of  all 
future  claims.®  Some  are  cases  of  releases  under  seal,  and  the 

iGalbraith  v.  McLain,  84  111.  379;  Simpson  v.  Simpson,  114  111.  603;  Kershaw 
V.  Kershaw,  102  111.  307  ;  Long  v.  Long,  118  111.  638,  reversing  30  111.  .\pp.  559  ; 
Jones  V.  Jones,  46  la.  466;  Gushing  v.  Gushing,  7  Bush.  259  ;  Gray  r.  Bailey,  42 
Ind.  349;  Smith  v.  Smith,  59  Me.  214;  Nesmith  v.  Dinsmore,  17  N.  II.  515; 
Quarles  v.  Quarles,  4  Mass.  680;  Kenney  v.  Tucker,  8  Mass.  142;  Havens  r. 
Thompson,  11  G.  E.  Gr.  383  ;  Steele  r.  Frierson,  85  Tenn.  430  ;  Bishop  v.  Daven- 
port, 58  111.  105;  Fitch  v.  Fitch,  8  Pick.  480. 

^  Liginger  v.  Field,  78  Wis.  367. 

3  Gray  v.  Bailey,  42  Ind.  349  ;  Jones  v.  Jones,  46  la.  476 ;  Galbraith  v.  McLain, 
84  111.  379  ;  Gushing  v.  Cusliing,  7  Bush.  259;  Havens  r.  Thompson,  11  G.  E.  Gr. 
383. 

*  Kershaw  v.  Kershaw,  102  111.  307  ;  Simp.«on  i-.  Simpson,  114  111.  603;  Parsons 
V.  EI3',  45  111.  232. 

^Smithr.  Smith,  59  Me.  214. 

«  Quarles  v.  Quarles,  4  Mass.  680.     This  instrument  was  under  seal. 


542  Advancements. 

courts  seems  to  place  their  decisions  on  the  fact  of  tlie  seal 
importing  a  consideration/  But  a  quit-claim  deed  to  the 
ancestor,  describing  the  lands  of  the  latter  was  held  not  to 
be  binding  on  the  heir, because  notevidenced  as  an  advance- 
ment is  required  by  statute  to  be  evidenced.^  In  New 
York  a  son  received  a  parol  gift  of  real  estate  from  his 
father,  went  into  |)OSsession,  and  died.  The  value  of  the 
land  thus  given  was  equal  to  the  amount  his  children 
were  entitled  to  of  their  grandfather's  estate.  The  agree- 
ment was  that  the  land  should  be  in  full  of  all  claims  on 
the  grandfather's  estate  ;  and  it  w^as  held  that  the  chil- 
dren were  not  entitled  to  any  part  of  the  grandiather's 
estate,  on  the  ground,  however,  that  the  land  was  Avortli 
as  much  as  they  would  receive  were  it  yet  a  part  of  the 
estate  to  be  divided.^  In  Vermont  it  is  held  that  a  release 
in  full,  not  under  seal,  is  not  binding,  though  the  court 
did  not  lay  much  stress  upon  the  lack  of  a  seal,  but  upon 
the  fact  that  the  statute  concerning  advancements  did  not 
apply  to  an  instance  of  this  kind  ;  but  it  was  considered 
to  be  an  advancement  to  the  extent  of  the  value  of  the 
l^roperty  thus  received.*  So  in  Indiana  where  a  father 
gave  his  son  a  sum  of  money  under  a  verbal  agreement 
that  it  should  be  in  full  of  all  claims  of  the  son  to  his 
estate,  and  the  father  died  seised  of  certain  real  estate,  it 
was  held  that  the  amount  thus  received  should  be  treated 
only  as  an  advancement  of  the  amount  j^aid.^ 

1  Barhara  v.  McKneely  (Ga.),  15  S.  E.  Eep.  761. 

2  Long  r.  Long,  US  111.638. 

3  Parker  v.  McCluer,  36  How.  Pr.  301  ;  S.  C.  5  Abb.  N.  S.  97  ;  3  Keves,  318. 

*  Buck  t\  Kittle,  49  Vt.  288;  Robinson  v.  Robinson,  Brayt.  59;  Robinson  v. 
Swift,  3  Vt.  283      This  was  also  held  in  Adam's  Estate,  35  Pa.  L.  Jr.  285. 

^Stokesberry  v  Reynolds,  57  Ind.  425.  In  Maryland  a  release  by  the  heir  is 
a  nullity  :  Young's  Estate.  3  Md.  Ch.  461.  A  husband  cannot  make  an  assisn- 
ment  or  transfer  of  his  wife's  interest  in  expectnncy,  even  of  personal  property  : 
Needles  r.  Needless,  7  Ohio  St.  432.  In  this  la-^t  case  all  releases  of  an  expect- 
ancy are  held  void.  If  one  child  release  another  child  from  liability  to  account 
at  their  father's  death  for  an  over-due  amount  it  has  received,  no  one  can  object 


Origin  and  Essentials  of  Advancements.        543 

552.  Purchaser  of  Heir's  Interest  Takes  Sub- 
ject TO  Advancement  Made. — The  j^iirchaser  of  an 
heir's  interest,  after  his  ancestor's  death,  takes  it  subject 
to  any  advancements  made  to  such  heir  during  the  an- 
cestor's life,  although  he  have  no  knowledge  of  the  trans- 
action at  the  time  of  the  purchase.^  So  the  creditors  of 
the  heir  are  likewise  bound."  And  if  the  heir  has  been 
fully  advanced,  he  has  no  interest  in  the  real  estate  of  the 
ancestor,^  and  a  judgment  against  such  an  heir  is  not  a 
lien  on  any  part  of  the  land  of  his  ancestor.*  A  pur- 
chaser from  an  heir  after  the  death  of  the  ancestor  stands 
exactly  in  the  shoes  of  such  heir ;  and  if  any  of  his  co- 
heirs have  been  advanced,  or  advanced  more  than  such 
heir,  he  may  insist  that  these  advanced  heirs  shall  account 
for  the  amounts  advanced  to  them.°  A  father  made  a  will 
disposing  of  all  his  property  in  five  shares,  giving  five  to 
his  grandchildren,  and  providing  that  their  parents 
should  have  its  use  and  control  during  their  lives. 
Three  years  afterward  he  delivered  to  his  children  cer- 
tain tracts  of  land,  and  took   from  them   papers,  duly 

but  the  person  executing  the  release;  and  it  is  binding  on  him  until  he  repu- 
diates it :  Andrews  v.  Halliday,  63  Ga.  263. 

A  son  entered  into  business  witii  his  father,  the  entire  capital  of  the  firm  con- 
sisting of  money  wliich  belonged  to  the  son's  mother;  subsequently  the  fatlicr 
transferred  the  business  to  the  son,  taking  a  judgment  note.  When  the  father 
attempted  to  collect  the  judgaient  the  son  resisted  on  the  ground  that  tlie  money 
was  part  of  his  mother's  estate,  and  his  father  had  no  right  to  it.  The  son  then 
proposed  to  give  his  father  a  receipt  acknowledging  that  he  had  received  from 
him  the  money  on  account  of  his  share  in  his  mother's  estate.  This  propos.:! 
wa'!  acquiesced  in  by  the  father,  wlio  made  no  further  attempt  to  collect  the 
judgment.  On  the  distribution  of  the  mother's  estate,  the  court  found,  as  a  con- 
clusion of  law,  that  tl)e  amount  was  an  advancement  from  the  mother's  e-tato, 
and  not  a  debt  due  the  father,  and  that  the  agreement  of  the  son  operated  as  an 
estoppel:  Skinner's  Appeal.  1  Mon.  (Pa.)  439. 

'Steele  v.  Frierson,  85  Tenn.  430;  Gillian  v.  McCormack,  85  Tenn.  597. 

2  Liginger  v.  Field,  78  Wis.  367. 

^Flesher  v.  Mitchell,  5  W.  Va.  59. 

*  Liginger  v  Field,  svpra. 

*  Duncan  v.  Henrv,  125  Ind.  10. 


544  Advancements. 

sealed,  acknowledging  that  they  had  received  the  property 
described  "  as  part  of  my  portion  of  his  [the  father's  ]  es- 
tate under  his  will,  and  which  I  am  to  hold  as  his  will 
directs  after  his  death,  and  which  is  to  be  taken  and  con- 
sidered as  a  part  of  my  portion  (Urected  to  be  given  me 
by  the  will  aforesaid."  These  papers  Avere  duly  recorded 
in  the  clerk's  office  of  the  county  where  the  land  was 
situated.  Five  years  afterward  one  of  the  sons  sold  his 
land  to  his  brother,  who,  three  years  later,  sold  his  tract 
and  the  one  he  had  bought  to  a  stranger,  who  bought 
without  any  notice  of  a  defect  in  the  title,  except  the  con- 
structive notice  arising  from  the  recording  of  the  papers. 
At  the  time  of  the  sale  to  the  stranger  the  son  selling 
was  in  possession,  and  his  father  still  living.  As  against 
this  purchaser  the  court  decided  that  the  flither  was 
estopped  to  set  up  title  to  the  land  inconsistent  with  that 
described  in  the  recorded  papers ;  that  the  purchaser  got 
from  the  son  such  title  and  right  to  the  land  as  Avas  de- 
scribed in  the  papers,  according  to  the  legal  tenor  and 
effect  thereof;  that  the  legal  effect  of  these  papers  was 
that  the  sons  took  the  property  described  as  an  advance- 
ment, as  their  OAvn  property,  Avith  the  condition  attached 
that  they  should  hold  it  subject  to  the  disposition  their 
father  might  make  of  it  by  his  will  and  at  his  death, 
which  condition  was  repugnant  to  the  grant,  and  void  ; 
and  that  any  understanding  of  the  father  and  sons  that 
the  reference  in  the  papers  to  his  will  was  not  to  the  will, 
as  a  will,  but  only  as  a  paper  describing  the  nature  and 
extent  of  their  title  to  the  property  received,  whatcA^er 
might  have  been  its  effect  between  them,  could  not  affect 
the  purchaser  from  the  son,  who  had  a  right  to  stand 
upon  the  legal  effect  of  the  papers,  taken  by  the  father, 
as  the  measure  of  the  son's  title.^ 

'  Keaton  v.  Jordan,  52  Ga.  300. 


CHAPTER  XX. 


PRESUMPTION TRUSTS. 


553.  Purchase  in  Name  of  Stranger.  566. 

554.  Purcliase  of  Land  by  Father  and 

Conveyance  to  His  Cliild. 

555.  Contract  by  Fatiier  for  Purchase  in     567. 

Child's  Name.  5G8. 

556.  Conveyance  or  Gift   by  Father  to 

Child.  569. 

557.  Recital  of  Consideration  in  Deed.       570. 

558.  Gift  by  Father  to  Infant  Son.  571. 

559.  Gift  to  Child  Already  Provided  for. 

560.  Purchase  in  Name  of  Illegitimate     572. 

Child. 

561.  Father  Remaining  in  Possession —     573. 

Receiving   Rents   and    Profits — 
Life    Estate — Reversionary    In-    574. 
terest. 

562.  Purchase   by  Father   in   His  Own 

and  Joint  Name  of  Child — Pur-  575. 
chase  in  Name  of  Child  and  576. 
Stranger. 

563.  Purchase  or  Gift  of  Personal  Prop-    577. 

erty  for  or  to  Child. 

564.  Gift  to  be  Advancement  must  be  by     578. 

way  of  Donee's  Portion. 

565.  Argument  of    Court  in  Rendering    579. 

Decision    on    Facts    Stated    in 
Foregoing  Section. 


Same — Disposal  of  Items  in  Fore- 
going Section — "  Setting  up  in 
Business." 

Cost  of  Education. 

Trifling  Sums  or  Articles — Watch 
— Horse — Furniture. 

Contingent  Interest — Annuity. 

Parent  Paying  Debt  of  Child. 

Child  Executing  Note  to  Parent 
for  Money  Advanced. 

Receipt  for  Debt — Surrender  of 
Note  or  Bond. 

Child  Purchasing  Property  with 
Parent's  Money. 

Donor  Purchasing  Property  with 
Money  Charged  as  an  Ad- 
vancement. 

Note  of  Father— Sealed  Bill. 

Purchase  or  Gift  by  Mother  for 
or  to  her  Child. 

Rule  of  Presumption  Applies  to 
a  Gift  to  a  Daughter. 

Purchase  by  Grandfather  in  Name 
of  Grandchild. 

Gift  by  Husband  to  Wife. 


553.  Purchase  in  Name  of  Stranger. — In  a  well 
considered  English  case  Lord  Chief  Baron  Eyre,  said : 
"  The  clear  result  of  all  the  cases,  without  a  single  excep- 
tion, is  that  the  trust  of  a  legal  estate,  whether  freehold, 
copyhold,  or  leasehold ;  whether  taken  in  the  names  of 
the  purchaser  and  others  jointly,  or  in  the  name  of  others 
without  that  of  the  purchaser ;  whether  in  one  name  or 
several,  whether  jointly,  or  successive,  results  to  the  man 
35  545 


546  Advancements. 

who  advances  the  purchase-money ;  and  it  goes  on  a  strict 
analogy  to  the  rule  of  the  common  law,  that  where  a  feof- 
ment  is  made  without  consideration,  the  use  results  to  the 
feoffor."  ^  In  the  absence  of  all  rebutting  circumstances, 
this  rule  has  its  foundation  in  a  natural  presumption, 
that  he  who  supplies  the  money  never  intended  that  the 
grantee  in  the  deed  should  be  the  beneficiary  of  the  trans- 
action, and  that  the  conveyance  was  made  in  this  way  for 
the  convenience  of  the  purchaser.  Every  day's  experi- 
ence shows  the  usefulness  of  this  presumption.^  Yet  the 
burden  is  on  the  person  claiming  that  the  transaction  is  a 
trust  for  his  benefit,  to  establish  such  claim  by  clear  and 
satisfactory  evidence.^  If  only  part  of  the  purchase- 
money  is  paid  by  a  third  person  a  trust  results  pro  tanto.^ 
The  trust  must  arise  at  the  time  the  purchase  is  made ; 
and  no  trust  can  arise  merely  by  the  application  of  money 
to  the  payment  of  the  purchase  price,  after  the  purchase 

^  Dyer  v.  Dyer,  2  Cox,  92. 

''The  cases  upon  this  point  are  a  legion,  and  we  only  cite  a  few:  Edwards  v. 
Edwards,  39  Pa.  St.  369 ;  Wilson  v.  Beauchamp,  44  Miss.  556 ;  Rothwell  v.  De- 
wees,  2  Black,  613;  Buck  v.  Pike,  11  Me.  9;  Hall  t;.  Young,  87  N.  H.  134; 
Clark  V.  Clark,  43  Vt.  685 ;  Root  v.  Blake,  14  Pick.  271 ;  Dean  v.  Dear,  6  Conn. 
285;  Boyd  v.  M'Lean,  1  Johns.  Ch.  582  ;  McCartney  v.  Bostwick,  32  N.  Y.  53; 
Johnson  v.  Dougherty,  18  N.  J.  Ch,  406;  Nixon's  Appeal,  63  Pa.  St.  279  ;  Cecil 
Bank  v.  Snively,  23  Md.  253  ;  Bank  of  U.  S.  v.  Carrington,  7  Leigh.  566  ;  Hender- 
son V.  Hoke,  1  bev.  &  B.  Eq.  119  ;  Williams  v.  HoUingsworth,  1  Strobh.  Eq.  103; 
Kirkpatrick  v.  Davidson,  2  Kelly  (Ga.),  297;  Caple  v.  McCollum,  27  Ala.  461  ; 
Oberthier  r.  Stroud,  33  Tex.  522;  Gass  v.  Gass,  1  Heisk.  613;  Doyle  v.  Sleeper,  1 
Dana,  531;  McGovern  r.  Knox,  21  Ohio,  547  ;  Elliotts.  Armstrong,  2  Bla-kf. 
198 ;  Church  v.  Cole.  36  Tnd.  34  ;  Latham  v.  Henderson,  47  HI.  185 ;  Johnson  v. 
Quarles,  46  Mo.  423;  Tinsley  ?\  Tinsley,  52  la.  14;  Rogan  v.  Walker,  1  Wis. 
527;  Irvine  v.  Marshall,  7  Minn.  286;  Case  v.  Codding,  38  Cal.  191  ;  Frederick  r. 
Haas,  5  Nev.  389  ;  Harris  v.  McTntyre,  118  111.  275  ;  Forrester  v.  Moore,  77  Mo. 
651;  Sexton  v.  Hollis,  26  S.  C.  231  ;  Murry  v.  Sell,  23  \N .  Va.  475;  Ex  parte 
Houghton,  17  Ves.  251 ;  Reddington  v.  Reddington,  3  Ridg.  106,  177  ;  Groves  v. 
Groves,  3  Y.  &  J.  163,  170;  Trench  t-.  Harrison,  17  Sim.  111. 

3  Bibb  D.  Hunter,  79  Ala.  351;  Carter  v.  Challen,  83  Ala.  135;  Reynolds  v. 
Caldwell,  80  Ala.  232. 

*Somers  v.  Overhulser,  67  Cal.  237;  Lipscomb  v.  Nichols,  6  Col.  290. 


Presumption — Trusts.  547 

has  been  made.^     If  the  money  is  advanced  by  way  of  a 
loan  no  trust  arises.'   So  the  lending  of  money  by  a  father 
to  a  stranger  and  taking  back  a  note  and  mortgage  pay- 
able to  his  child  is  an  advancement  to  it  the  same  as  a 
purchase  of  property.^  In  an  Irish  case  it  was  said  of  this 
kind  of  a  transaction  that  it  cannot  "  be  questioned  that 
investments  of  this  character  are  in  the  nature  of  ad- 
vancements.    In  truth  it  is  a  question  of  evidence ;  and 
the  whole  doctrine  of  advancements  is  founded  on  j)re- 
sumption — a  presumption  which  rebuts  the  other  presump- 
tion of  law — that  a  purchase  by  one  man  in  the  name  of 
another  is  a  trust  for  himself.     If  the  party  in  whose 
name  the   investment  is  made  stands  in  the  relation  of 
son  or  wife  to  the  party  making  the  investment,  a  pre- 
sumption of  advancement  arises;  but,  if  there  is  evidence 
to  rebut  that  presumption,  the  parties  will  be  remitted  to 
their  original  positions  ;  so  that  as  the  question  is  one  of 
presumption,  depending  upon  circumstances,  every  case 
is  liable  to  be   encompassed  with   difficulties,  and  every 
case  therefore  must  be  regulated  by  the  views  taken  of 
its  particular  circumstances  ;   and  though  this  has  been 
regretted  by  some  judges,  the  law  is  so.""* 

554.  Purchase  of  Land  by  Father  and  Convey- 
ance TO  His  Child. — A  purchase  by  a  father  in  the 
name  of  a  child  does  not,  however,  raise  the  presumption 

'  Miltier  v.  Freeman,  40  Ark.  62  ;  Fitckett  r.  Durham,  109  Mass.  419  ;  Steere  v. 
Steere.  5  .lolins  Ch.  1  ;  Niver  v.  Crane,  98  N.  Y.  40  ;  Gerry  v.  Stimson,  GO  Me. 
186 ;  Boozer  v.  Teague,  27  S.  C.  348. 

MVhalej  V.  Wlialey,  71  Ala.  159;  Bartlett  v.  Pickersgill,  1  Eden.  515;  Harvey 
V.  Pennybacker,  4  Del.  Ch.  445;  Dudleys.  Bachelder,  53  Me.  403;  Gibson  r. 
Foote,  40  Miss.  788.  In  some  of  the  States  the  trust  nuist  appear  on  the  face  rf 
the  deed  or  there  is  no  trust:  see  Campbell  v.  Campbell,  21  Midi.  438  ;  Campbell 
V.  Campbell,  70  Wis.  311 ;  Schultze  v.  New  York  City,  103  N.  Y.  307  ;  Stebbins 
V.  Morris,  23  Blatchf.  181. 

^Cerney  v-  Pawlot,  66  Wis.  262. 

*  Fox  V.  Fox,  15  Ir.  Ch.,  p.  95. 


548  Advancements. 

of  a  resulting  trust,  and  it  is  considered  not  a  gift  but  an 
advancement  to  the  child.  "  If  there  exists  a  moral  duty 
to  advance  and  provide  for  the  recipient  of  the  legal 
title,"  said  the  Supreme  Court  of  Mississippi,  "  as  in  the 
case  of  a  son  or  daughter,  or  wife,  then  the  advancement 
of  the  money  by  the  father  or  husband,  will  be  referred 
to  this  moral  obligation,  and  will  be  placed  to  the  account 
of  a  natural  duty  wliich  he  is  performing  ;  and  the  pre- 
sumption ini?tead  of  being  in  favor  of  a  '  trust '  will  be 
that  it  was  a  gift  by  way  of  advancement  and  provision. 
In  the  case  of  the  child  or  wife,  the  rule  is  not  inflexible, 
that  it  shall  be  a  provision  or  advancement,  but  only 
shifts  the  burden  of  proof,  so  that  if  it  shall  be  clearly 
proved  that  it  was  not  so  meant  as  an  advancement,  but 
that  the  title  was  placed  in  the  child  or  wife  for  other 
reasons,  to  be  held  in  trust  for  the  father  or  husband,  then 
the  presumption  is  overcome."  ^  Lord  Chief  Baron  Eyre, 
referring  to  this  rule,  in  an  early  case,  said  :  ^'  The  cir- 
cumstances of  one  or  more  of  the  nominees  being  a  child 
or  children  of  the  purchaser,  is  held  to  operate  by  rebut- 
ting the  resulting  trust ;  and  it  has  been  determined  in  so 
many  cases  that  the  nominee  being  a  child  shall  have 
such  operation  as  a  circumstance  of  evidence,  that  it  would 
be  disturbing  landmarks  if  we  suffered  either  of  these 
proj^ositions  to  be  called  into  question — namely,  that 
such  circumstance  shall  rebut  the  resulting  trust ;  and, 
that  it  shall  do  so  as  a  circumstance  of  evidence.  I 
think  it  would  have  been  a  more  simple  doctrine  if  the 
children  had  been  considered  as  'purchasers  for  valuable 
consideration.  This  way  of  considering  it  would  have 
shut  out  all  the  circumstances  of  evidence  which  have 
found  their  way  into  many  of  the  cases,  and  would  have 
prevented  very  nice  distinctions,  and  not  very  easy  to  be 

'  Wilson  V.  Beauchamp,  44  Mlsrf.  556. 


Presumption —  Trusts.  549 

understood.  Considering  it  as  a  circumstance  of  evidence, 
there  must,  of  course,  be  evidence  admitted  on  the  other 
side.  Thus  it  was  resolved  into  a  question  of  intent, 
which  was  getting  into  a  very  wide  sea  Avithout  very 
certain  guides."  ^  Tliese  quotations  are  supported  by  a 
long  list  of  cases,  botli  in  this  country  and  in  England ; 
and  it  is  to  be  observed  that  the  presumption,  where 
merely  the  purchase,  the  conveyance,  and  the  relationship 
of  the  purchaser  and  grantee  are  shown,  is  that  the  trans- 
action was  not  a  gift  but  an  advancement.  Of  course  it 
is  almost  impossible  to  merely  prove  these  three  facts 
alone,  without  revealing  something  more  of  the  transac- 
tion which  Avill  tend  to  show  a  gift,  advancement,  or  a 
resulting  trust.  But  as  between  a  gift  or  an  advance- 
ment, the  presumption  is  that  it  was  an  advancement, 
especially  when  the  property  purchased  is  of  considerable 
value.'^ 

»  Dver  V.  Dyer,  2  Cox,  92. 

2  Parker  v.  Newitt,  ]8  Ore.  274;  Taylor  r.  Miles,  19  Ore.  550;  Wormley  v. 
Wormley,  98  111.  544;  Taylor  v.  Taylor,  4  Gilm.  303;  Bay  r.  Cook,  31  111.  33G ; 
Lewis's  Appeal,  127  Pa.  St.  127;  Stanley  v.  Brannon,  G  Blackf.  193;  Mallett  v. 
Page,  8  Ind.  364 ;  Woolery  v.  Woolery,  29  Ind.  249 ;  White  r.  White,  52  Ark.  188  ; 
James  v.  James,  41  Ark.  301;  Baker  r.  Leathers,  3  Iiid.  558;  ISIcClintock  v. 
Loisseau,  31  \V.  Va.  8G"> ;  Ciabbe  v.  Crabbe,  1  Mylne  &  K.  511 ;  Bone  v.  Pollard, 
24  Beav.  283;  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Butler  v.  M.  Ins.  Co., 
14  Ala.  777;  Hatton  v.  Landman,  28  Ala.  127;  Brown  v.  Burke,  22  Ga.  574; 
Maxwell  v.  Maxwell,  109  III.  588;  Hayden  v.  Burch,  9  Gill  (Md  ),  79;  Lisloff  v. 
Hart,  25  Miss.  245;  Gee  v.  Gee,  32  Miss.  190;  Allen  v.  De  Groodt,  98  Mo.  159; 
Page  V.  Page,  8  N.  H.  187;  Proseus  v.  Mclntyre,  5  Barb.  424;  Partridge  v. 
Havens,  10  Paige,  618;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Tremper  v.  Bar- 
ton, 18  Ohio,  418  ;  Phillips  i-.  Gregg,  10  Watts,  158  ;  Long  v.  Long,  2  Penny.  (Pa.) 
180;  Douglass  v.  Brice,  4  Eich.  Eq.  322;  Hamilton  r.  Bradley,  5  Hayw.  127; 
Dudley  v  Bosworth,  10  Ilu'iiph.  9;  Gaugh  v.  Henderson,  2  Head,  627;  Gass  v. 
Gass.  1  Heisk.  613;  Shepherd  v.  White,  10  Tex.  72;  S.  C.  11  Tex.  346;  Lott 
V.  Kaiser,  61  Tex.  665;  Shales  v.  Shales,  2  Freem.  252;  Lockiiard  v.  Beck- 
ley,  10  W.  Va.  87;  Grey  v.  Grey,  1  Ch.  Cas.  296;  Redington  v.  Red- 
ington,  3  Ridgw.  106,  179;  Dyer  v.  Dyer,  2  Cox,  92;  Beikford  v.  Beckford, 
Lofft.  400;  Stileman  v  Ashdown,  2  Atk.  480;  Taylor  v.  Taylor,  1  Atk.  3SG ; 
Mumma  v.  Mumma,  2  Vern.  19  ;  Bateraan  v.  Bateman,  2  Vern.  436  ;  Grey  v.  Grey, 
2  Swanst.  694;  Jennings  v.  Selleck,  1  Vern.  467;  Finch  i'.  Finch,  15  Ves.  43; 


550  Advancements. 

555.  Contract  by  Father  for  Purchase  in  Child's 
Name. — If  a  father  contract  for  the  purchase  of  land  in 
his  child's  name,  and  die  before  the  conveyance  is  com- 
plete, the  presumption  is  that  the  contract  was  an  ad- 
vancement and  not  a  trust/  In  such  instances  the  estate 
of  the  donor  is  liable  for  the  purchase-money.^ 

556.  Conveyance  or  Gift  by  Father  to  Child. — 
With  regard  to  a  gift  or  conveyance  by  a  father  to  his 
son,  Vice-Chancellor  Malins  announced  the  following 
rule  :  "  The  law  is  not  doubtful  that  if  this  had  been  a 
transfer  ^  to  a  stranger  it  would  have  operated  as  a  trust, 
but  if  a  gift  is  made  in  favor  of  a  child  the  presumj)tion 
of  law  is  that  it  is  intended  as  an  advancement  or  pro- 
vision for  the  child.  The  old  cases  turned  upon  the  ques- 
tion, whether  the  child  was  provided  for  or  not,  but  re- 
cent authorities  have  gone  upon  whether  the  gift  was  in- 
tended as  an  advancement.  Thus,  in  the  j^resent  case, 
the  transfer  having  been  made  to  the  son,  it  is  thrown 
ujDon  those  who  deny  that  it  was  an  absolute  gift  to  prove 
that  there  was  no  intention  on  the  part  of  the  father  to 
make  an  advancement  or  provision  for  his  son."  *  So  in 
an  American  case,  where  a  father  made  conveyances  of 

Christy  v.  Courtenay,  13  Beav.  96 ;  Skeats  v.  Skeats,  2  Y.  &  Coll.  C.  C  9 ;  S.  C.  12  L. 
J.  Ch.  N.  S.  22 ;  6  Jur.  942 ;  Scroope  v.  Scroope,  1  Ch.  Cas.  27 ;  Elliott  v.  Elliolt, 
2  Ch,  Cas.  231 ;  CoUinson  v.  Collinson,  3  De  G.,  M.  &  G.  409;  Jeans  v.  Cooke, 
24  Beav.  513;  S.  C.  4  Jur.  N.  S.  57;  27  L.  J.  Cii.  202;  Ouseley  v.  Anstruther, 
10  Beav.  453.  The  advance  to  a  son  of  money  to  purchase  a  farm  is  an  advance- 
ment :  Weaver's  Appeal,  63  Pa.  St.  309.  A  purchase  in  the  name  of  an  idiot  son 
is  an  advancement :  Cartwright  v.  Wise,  14  III.  417.  So  to  an  infant  son :  Hall 
V.  Hall,  107  Mo.  101. 

'  Redingtion  v.  Redington,  3  Ridgw.  106  ;  Vance  v.  Vance,  1  Beav.  605  ;  Drew  v. 
Martin,  2  H.  &  M.  130 ;  S.  C  10  Jur.  N.  S.  356  ;  33  L.  J.  Ch.  367.  See  Nichol- 
eon  V.  Mulligan,  L.  R.  3  Ir.  Eq.  308. 

2  lb.     See  Crosbie  v.  McDoual,  13  Ves.  148  ;  Skidmore  v.  Bradford,  8  Eq.  134. 

'The  case  concerned  a  transfer  of  £3.200  of  Reduced  Bank  Annuities. 

*  Hepworth  i-.  Hepworth,  L.  R.  11  Eq.  10;  Sayre  v.  Hughes,  L.  R.  5  Eq.  376; 
S.  C.  16  W.  R.  662;  18  L.  T.  N.  S.  347. 


Presump  Hon —  Tr  usts.  551 

land  to  his  son  tlie  court  said  :  "  They  were  assurances  of 
land,  and  in  each  case  the  value  of  the  property  conveyed 
was  large,  when  considered  relatively  to  the  whole  estate 
of  the  grantor.  The  presumj)tion  of  law,  therefore,  is, 
that  they  were  advances,  and  not  mere  gifts,  and  hence 
the  burden  lies  upon  those  who  allege  they  were  not  ad- 
vancements to  rebut  the  presumption  raised  from  the  sub- 
ject and  the  value  of  the  property  thus  transferred  to  the 
children.  Nothing  is  better  settled  than  that  a  convey- 
ance of  land  by  a  father  to  a  child,  either  directly  or  by 
payment  of  the  purchase-money  and  having  the  deed 
made  to  the  child,  is  pi^hna  facie  an  advanced  portion, 
and  this  presumption  is  greatly  strengthened  when  the 
value  of  the  land  bears  any  considerable  proportion  to 
the  father's  whole  estate."  The  court  then  proceeds  to 
quote  the  statute  there  in  force,  comparing  it  with  the 
English  Statute  of  Distributions,^  and  adds  :  "  It  is  notice- 
able that  the  act  speaks  of  settlements,  which  are  or- 
dinarily by  deed,  and  its  main  purpose  is  to  cause 
equality  among  children,  not  equality  in  that  which  may 
remain  at  the  death  of  the  intestate,  but  equality  in  the 
distribution  of  all  that  came  from  the  ancestor.  The 
statute  itself  then  would  raise  a  presumption,  without  the 
aid  of  what  is  known  to  be  the  common  understanding, 
that  when  a  father  makes  a  deed  of  gift  to  a  child  he  in- 
tends the  gift  to  be  an  advanced  portion,  and  such  is  the 
doctrine  of  the  decisions."  ^  Many  cases  are  to  the  same 
effect.^     If  the  child  claims  it  was  an  absolute  gift,  and 

'  The  court  quotes  a  remark  of  Sir  Joseph  Jekyl,  concerning  the  statute  that 
"  the  design  of  tlie  statute  was  to  do  what  a  just  and  good  parent  ought  for  all 
his  children  ;"  and  another  of  Lord  Raymond,  that  "  it  makes  such  a  will  for  the 
intestate,  as  a  father  free  from  partiality  of  affections,  would  make  :"  2  P.Wms.  440. 

2  Dutch's  Appeal,  57  Pa.  St.  461. 

'  Hummel  v.  Hummel,  SO  Pa.  St.  420 ;  Harper  v.  Harper,  92  N.  C.  300 ;  San- 
ford  V.  Sanford  61  Barb.  293;  Gordon  r.  Barkelew,  2  Hal.  Ch.  94;  McGinnis  v. 
McPeake,  Pen   (N.  J.)  291  ;  Comings  v.  Wellman,  14  X.  H.  2S7 ;  Ray  v.  Loper, 


552  Advancements, 

not  an  advancement,  lie  lias  the  burden  to  show  that 
fact.^ 

557.  Recital  of  Consideration  in  Deed. — The  pre- 
sumption that  a  conveyance  of  land  by  a  father  or  parent 
to  his  child  is  an  advancement  does  not  prevail  where  the 
deed  recites  a  consideration  for  the  transfer,  especially  if 
the  consideration  is  the  full,  or  near  the  full,  value  of  the 
land ;  and  the  burden  to  prove  it  an  advancement  is  upon 

65  Mo.  470 ;  Nelson  v.  Wyan,  21  Mo.  347  ;  Grove  v.  Spedden,  46  Md.  527;  Hatch  v. 
Straight,  3  Conn.  31 ;  Ruch  v.  Biery,  110  Ind.  444 ;  Mutual  Fire  Ins.  Co.  v.  Deale, 
18  Md.  26  ;  Hall  v.  Hall,  107  Mo.  101 ;  State  v.  Jameson,  3  G.  &  J.  442  ;  Scott  r. 
Harris,  127  Ind.  520 ;  Hodgson  v.  Macy,  8  lud.  121 ;  Dillraan  v.  Cox,  23  Ind. 
440;  Higham  v.  Vanosdol,  125  Ind.  74;  Wolfe  v.  Kable,  107  Ind.  565  ;  Holliday 
V.  Wingfield,  59  Ga.  206;  McMahill  v.  McMahill,  69  la.  115;  Burton  v. 
Baldwin.  61  la.  283;  Kingsbury's  Appeal,  44  Pa.  St.  460;  Lentz  v.  Herizog,  4 
Whart.  520 ;  Hall  v.  Hall,  17  S.'  W.  Rep.  811 ;  Palmer  v.  Culbertson,  20  N.  Y. 
Supt.  391. 

In  England  a  deed  whereby  a  father  gave  all  his  property,  of  whatever  kind,  to 
his  son  was  held  not  to  be  an  advancement,  and  the  deed  was  annulled:  Hughes  r. 
Seanor,  18  W.  R.  108.  A  deed  to  a  child  in  pay  for  his  services  cannot  be  con- 
verted into  an  advancement :  Murrel  v.  Murrel,  2  Strobh.  Eq.  148. 

^  Higham  v.  Vanosdol,  125  Ind.  74  ;  Scott  v.  Harris,  127  Ind.  520 ;  Buch  v.  Brery, 
110  Ind.  444. 

The  donor's  heirs  cannot  set  up  tliat  the  conveyance  was  made  to  defraud  the 
creditors  of  the  donor,  and  therefore  void  :  McClintock  v.  Loisseau,  31  W.  Va. 
865. 

The  cases  of  Scott  v.  Scott,  1  Mass.  526,  and  Whitman  v.  Hapgood,  10  Mass.  437, 
seem  to  follow  the  old  rule,  allowing  proof,  however,  to  be  made  showing  that  it 
was  an  advancement. 

In  Illinois  something  more  must  be  shown  than  the  relationship  of  the  parties, 
a  statute  requiring  it :  Wallace  v.  Reddick,  119  111.  151. 

Where  a  father  put  his  son  in  possession,  and  he  held  such  possession  twenty 
years  and  sold  the  land,  and  the  father  made  the  deed,  it  was  held  that  the  pur- 
chase-money was  an  advancement  to  the  amount  for  which  the  land  was  sold : 
Gordon  v.  Barkelow,  2  Hal.  Ch.  94. 

A  gift  of  property  by  a  father  to  a  son  not  living  with  him  is  presumed  to  be 
an  advancement :  Holliday  v.  Wingfield,  59  Ga.  206. 

The  purchaser  at  a  sheriff's  sale  assigned  his  interest  in  the  same,  before  re- 
demption, to  the  daughter  of  the  judgment  debtor,  with  his  assent  and  direction, 
and  tlie  judgment  debtor  failed  to  redeem.  It  was  held  that  this  was  an  advance- 
ment by  the  judgment  debtor  to  his  daughter,  and  that  his  other  heirs  were  pre- 
cluded from  setting  up  any  interest  in  the  land :  McCoy  i;.  Pearce,  Thonip.  Ca& 
(Tenn.)  145. 


Presumption — Trusts.  553 

the  person  claiming  the  transaction  to  be  such.^  If  the  deed 
contains  a  recital  that  the  conveyance  is  made  in  consid- 
eration of  parental  love  and  affection,  and  partly  in  con- 
sideration of  a  snni  named,  the  presumption  is,  perhaps,  that 
it  is  a  sale  equal  to  the  consideration  paid  and  an  advance- 
ment as  to  the  remainder."  Inadequacy  of  price,  how- 
ever, is  not  alone  sufficient  to  show  an  advancement.^ 

558.  Gift  by  Father  to  Infaxt  Sox. — At  one  time 
it  was  considered  that  a  father's  gift  to  his  infent  son  was 
not  an  advancement,*  on  the  ground  that  the  child  could 
not  enjoy  it  nor  manage  it,  and  it  would  not  be  taken  that 
the  father  intended  to  bestow  a  separate  and  independent 
provision  on  the  child.  But  tbis  rule  has  long  since  been 
abrogated,  and  infancy  is  now  looked  upon  as  a  circum- 
stance peculiarly  favoring  the  claim  of  advancement.^ 

559.  Gift  to  Child' Already  Provided  For. — If 
a  child  has  already  been  provided  for,  still  the  transac- 
tion is  an  advancement,  though  that  fact  is  evidence  to 
rebut  the  presumption  of  an  advancement,  and  to  show 
that  the  son  is  a  trustee.'' 

•Miller's  Appeal,  107  Pa.  St.  221;  Aden  v.  Aden,  IG  Lea.  453.  If  the  deed 
contains  a  recital  that  it  is  a  fjlft,  the  grantee  cannot  be  required  to  account  for  it 
as  an  advancement :  James  v.  James,  76  N.  C.  331. 

2  The  question  arose  in  Bullard  v.  Bullard,  5  Pick.  527,  but  the  case  turned  on 
another  point.  It  is  quite  well  settled  that  a  transaction  may  be  in  part  gift  and 
part  advancement :  Meeker  v.  Meeker,  16  Conn.  383. 

^Merriman  v.  Lacefield,  4  Heisk.  209. 

*  Binion  v.  Stone,  2  Freem.  169 ;  S.  C.  Nels.  68. 

^  Lamplugh  v.  Lamplugh,  1  P.  Wras.  Ill  ;  Christy  v.  Courtenay,  13  Beav.  96; 
CoUinson  v.  CoUinson,  3  De  G.,  M.  &  G.  403;  Mumma  r.  Mumma,  2  Vern.  19; 
Finch  V.  Finch,  15  Ves.  43;  Hall  v.  Hall,  107  Mo.  101;  Cartwright  v.  Wi.e, 
14  111.  417  (idiot). 

«  Elliot  V.  Elliot,  2  Ch.  Cas.  231 ;  Pole  v.  Pole,  1  Ves.  Sr.  76  ;  see  Grey  v.  Grey,  2 
Svv.  600  ;  Lloyd  v.  Reed,  1  P.  Wms  607  ;  Reddington  v.  Reddington,  3  Ridgw. 
106,  190;  Sidraomh  x.  Sidmouth,  2  Beav.  447,  456. 

It  may  ha  remarked  here  that  insolvency  of  an  ancestor  does  not  defeat  the 
right  to  have  property  accounted  for  as  an  advancement :  Young's  Estate,  3  Md. 
Ch.  461. 


554  Advancements. 

560.  Purchase  in  Name  of  Illegitimate  Son. — 
Though  the  law  does  not  recognize  any  relationship  be- 
tween a  father  and  his  illegitimate  son,  yet  a  purchase  by 
the  father  in  his  name  will  raise  the  presumption  of  a  gift 
and  not  one  of  a  resulting  trust ;  for  the  father  is  under  a 
moral  obligation  to  provide  for  a  child  which  he  has  thus 
brought  into  the  world.^  But  it  is  to  be  observed  that  no 
question  of  advancement  can  arise  between  an  illegitimate 
child  of  an  ancestor  and  his  legitimate  children,  though 
one  of  gift  or  resulting  trust  may  arise.  Yet  in  some  of 
the  States  statutes  permit  illegitimate  children  to  inherit 
from  their  reputed  fathers  where  they  have  acknowledged 
them  as  their  children,  in  which  event  questions  of  advance- 
ment may  arise. 

561.  Father  Remaining  in  Possession — Receiving 
Rents  and  Profits — Life  Estate — Reversionary  In- 
terest.— If  the  advancement  is  real  property,  and  after 
the  execution  of  the  deed  the  father  remains  in  possession, 
receives  the  rents,  lease  or  even  devise  it,  this  is  not  suffi- 
cient to  rebut  the  presumption  of  an  advancement, 
whether  the  son  be  an  infant  or  adult.^  If  a  father  deed 
his  son  a  tract  of  land,  reserving  a  life  estate,  or  receiving 
back  from  the  son  a  deed  conveying  a  life  estate,  the  re- 
mainder or  reversion  is  an  advancem'ent.^  So  a  deed  to  a 
child  of  j^i'operty  charged  with  payments  to  other  chil- 

1  Beckford  v.  Beckford,  Lofft.  490;  see  Tucker  v.  Burrow,  2  H.  &.  M.  515. 

^McClintock  v.  Loisseau,  31  W.  Va.  865;  Reddington  v.  Reddington,  3  Redw. 
106, 190  ;  Grey  v.  Grey,  2  Swanst.  600 ;  Dyer  v.  Dyer,  2  Cox,  92 ;  Woodman  v.  Mor- 
rell,  2  Freem.  32;  Sholes  v.  Sholes,  2  Freem.  252;  Scawin  v.  Scawin,  1  Y.  &  C. 
Ch.  65  ;  Williams  v.  Williams,  32  Beav.  370  ;  Alleyne  v.  Alleyne,  8  Jr.  Eq.  493  ; 
S.  C.  2  J.  &  L.  544 ;  State  v.  Jameson,  3  G.  &  J.  442  ;  Allen  v.  Groodt,  98  Mo. 
159. 

3  Comings  v.  Wellman,  14  N.  H.  287  ;  Rich  v.  Briery,  110  Ind.  444 ;  Rumboll 
V.  Rumboll,  2  Eden.  16;  Murless?'.  Franklin,  1  Swanst.  13;  Finch  v.  Finch,  15 
Ves.  43 ;  Eales  v.  Drake,  L.  R.  1  Ch.  Div.  217  ;  S.  C.  45  L.  J.  Ch.  51 ;  24  W.  R. 
184;  Williamson  v.  Jeffreys,  18  Jur.  1071. 


Presumption —  Trusts.  555 

dren  is  an  advancement  to  such  other  children  to  the 
extent  of  the  charges.^  Where  a  father  purchased  stock 
in  the  name  of  his  son,  but  received  the  dividends  under 
a  power  from  the  son,  it  was  held  that  this  was  an  ad- 
vancement to  the  son.^ 

562.  Purchase  by  Father  in  His  Own  and  Joint 
Name  of  Child — Purchase  in  Name  of  Child  and 
Stranger. — If  a  father  purchase  property  in  his  own 
and  his  son's  name,  jointly,  the  j^resumption  is  that  the 
transaction  so  far  as  it  relates  to  the  son  is  an  advance- 
ment.^ So  a  purchase  in  the  joint  names  of  a  son  and 
stranger  is  an  advancement  to  the  son.* 

563.  Purchase  or  Gift  of  Personal  Property 
FOR  OR  TO  Child. — Aside  from  the  amount  of  property, 
a  purchase  of  personal  property  in  the  name  and  for  his 
son,  by  a  father,  is  equally  an  advancement  with  a  like 
purchase  of  real  property.  Of  course,  the  kind  of  per- 
sonal property  bought,  the  occasion  when  it  is  bought, 
the  wealth  of  the  donor,  the  condition  of  the  child,  and 
the  value  of  the  property  bought,  are  all  questions  enter- 
ing into  the  one  of  advancements.'*  So,  with  certain  limi- 
tations, a  gift  of  money  or  personal  property  to  a  child 
will  be  deemed  an  advancement,  whether  it  is  a  gift  or 

'  Leniz  V.  Hertzog,  4  Wluirt.  520. 

^Sidmouth  v.  Sidmouth,  2  Beav.  447  ;  S.  C  9  L.  J.  Ch.  N.  S.  282.  As  to  land 
and  paying  taxes  tliereon  by  the  father,  see  Tuggle  v  Tuggle,  57  Ga.  520. 

^Dummerr.  Pitcher,  2  M.  &  K.  202  ;  Grey  r.  Grey,  2  Swanst.  594;  Back  v. 
Andrew,  2  Vern.  120 ;  Scrope  v.  Scrope,  1  Ch.  Cas  27.  The  cases  of  Pole  v.  Pole, 
1  Ves.  Sr.  7G;  and  Stileman  r.  Ashdown,  2  Atk.  477,  can  no  longer  be  regarded 
as  authorities. 

*  Hayes  v.  Kingdome,  1  Vern.  .S3;  Kingdon  v.  Bridges,  2  Vern.  67  ;  Laniphigii 
V.  Lamplugh,  1  V.  Wms.  Ill ;  Crabbe  v  Crabbe,  1  Mylne  &  K.  511 ;  S.  C.  30  L.  J. 
Ch.  N.  S.  181  ;  In  re  Eykyn,  6  Ch.  Div.  115. 

^  Dtimmer  v.  Pitcher,  2  M.  &.  K.  262 ;  Sidmnuth  i-.  Sidmouth  2  P.eav.  447  ;  Hep- 
worth  V.  Hepworth,  L.  R.  1  Eq.  10  ;  Fox  v.  Fox,  lo  Jr.  Ch.  89  ;  O'Brien  v.  Shell, 
L.  R.  7  Ir.  Eq.  255  ;  Batstone  v.  Salter,  L.  R.  10  Ch.  App.  431. 


556  Advancements. 

advancement,  depending  generally  upon  tlie  size  of  the 
gift,  which  may  be  taken  either  to  show  or  rebut  the  claim 
that  the  ti-ansaction  was  an  advancement/ 

564.  Gift  to  be  Advancement  Must  be  by  Way 
OF  Donee's  Portion. — A  gift  to  be  an  advancement  must 
be  by  way  of  the  portion  the  donee  would  inherit  at  the 
donor's  death.  It  is  not  a  mere  casual  provision  or  pay- 
ment. An  English  case  well  illustrates  this  view  of  the 
subject.  A  widower  dying  intestate  left  the  plaintiff  and 
defendant,  his  only  sons,  as  his  only  next  of  kin.  The  de- 
fendant administered  on  the  estate,  and,  as  he  thought,  set- 
tled it.  Thirteen  years  later  the  plaintiff  filed  a  bill 
against  the  defendant  for  administration,  an  accounting, 
and  other  relief.  At  the  trial  it  was  found  that  the  intes- 
tate had  given,  advanced,  or  settled  money  or  property  to 
or  on  the  plaintiff  to  the  amount  of  nearly  £5,000,  con- 
sisting of,  among  others,  the  following  items  :  [a]  Sums 
of  money  given  to  the  plaintiff  before  his  marriage,  and 
an  annual  allowance  of  £200  after  his  mari'iage.  {b)  One 
hundred  guineas,  the  fee  payable  on  his  entering  the 
chambers  of  a  special  pleader,  (c)  An  admission  to 
membership  of  the  Middle  Temple,  £133  8s.  {d)  Dues 
payable  to  that  Inns  of  Court,  £32  7^.  Qd.  (e)  The  price 
of  a  commission  in  the  army  purchased  for  the  plaintiff, 
£450.  (/)  Cost  of  outfit  for  the  plaintiff  and  his  wife, 
and  the  payment  of  their  passage  to  India,  £350.  {g) 
Several  suras  paid  by  the  intestate  to  discharge  the  plain- 
tiff's debts  in  India,  and  but  for  the  payment  of  which, 
according  to  the  evidence,  he  must  have  left  the  army. 
{h)   Three  sums,  amounting  to   £450,  advanced   to  the 

'  McDeartnan  v.  Hodiiett,  83  Va.  281  ;  Ford's  Estate,  1  P.  &  B.  (N.  B.)  551 ; 
Watkins  v.  Young,  31  Ciratt.  84;  Johnson  v.  Hoyle,  3  Plead.  5G ;  Steele  v.  Frier- 
son,  85  Tenn.  430  ;  Johns  m  v.  Patterson,  13  Lea,  626 ;  Stewart  v.  Pattison,  8  Gill, 
46.     But  see  Johns  )n  v.  Belden,  20  Conn.  322. 


Presumption —  Trusts.  557 

plaintiff  after  his  return  from  India  to  enable  him  to 
carry  on  some  mining  operations.  To  the  defendant  it 
was  found  that  the  intestate  had  given,  advanced,  or  set- 
tled upon  him,  £10,410  Ss.  2d  of  which  £6,387  9s.  was 
made  up  of  varying  annual  allowances  given  to  him  be- 
fore his  marriage,  an  annual  allowance  of  £200  a  year 
afterward. 

565.  Argument  of  Court  in  Rendering  Decision 
ON  Facts  Stated  in  Foregoing  Section. — In  passing 
on  the  questions  involved,  the  Master  of  the  Rolls  (Jessel) 
very  lucidly  illustrated  the  subject  of  advancements  as 
applied  to  the  items  we  have  named.  "  I  have  always 
understood  an  advancement,"  said  he,  "  by  way  of  portion 
is  something  given  by  the  parent  to  establish  a  child  in 
life,  or  to  make  what  is  called  a  provision  for  him,  not  a 
mere  casual  provision  for  him — not  a  mere  casual  pay- 
ment of  this  kind.  I  agree,  you  may  make  provision  by 
marriage  portion  on  the  marriage  of  the  child  ;  you  may 
make  it  on  putting  him  into  a  profession  or  business  in 
various  ways ;  you  may  pay  for  a  commission  ;  you  may 
buy  him  the  good-will  of  a  business  or  give  him  a  stock 
in  trade:  all  these  things  I  understand;  they  are  portions 
or  provisions.  I  also  agree  that,  if  in  the  absence  of  evi- 
dence you  find  a  father  giving  a  large  sum  to  a  child 
in  one  payment,  there  is  a  presumption  that  it  is  intended 
to  start  him  in  life  and  make  a  provision  for  him,  and  if 
there  is  a  small  sum  you  require  evidence  to  show  the 
purpose.  But  I  do  not  agree  that  the  words  of  the  statute 
'  by  portion '  are  to  be  disregarded,  nor  do  I  agree  that 
the  word  'advancement'  is  to  be  disregarded.  It  is  not 
every  payment  you  make  to  the  child  which  is  to  be 
regarded  as  an  advancement.  It  must  he  advanced  by 
way  of  portion.     In  every  case  which  I  have  referred  to, 


558  Advancements. 

it  has  been  sometliing  of  this  kind.  There  has  either 
been  the  settlement  itself,  or  a  purpose  which  every  one 
would  recognize  for  establishing  the  child  or  making  a 
provision  for  the  child.  I  see  in  the  case  of  Edwards  v. 
Freeman^  the  words  used  by  Sir  J.  Jekyll,  M.  H.,  are 
*a  provision;'  he  says  it  is  to  be  a  provision.  ...  So  that 
the  whole  judgment  goes  upon  this,  that  it  is  to  be  a 
2^rovision  for  a  child.  Not  every  payment  is  a  provision 
for  the  child,  and  I  think  that  is  what  Vice-Chancellor 
Wood  meant  when  he  said  in  Boyd  v.  Boyd  '^  that  the  pay- 
ment must  be  made  for  a  particular  purpose — he  meant 
with  a  view  to  the  establishment  of  the  child.  Now,  that 
certainly  was  the  case  as  regarded  the  custom  of  London ; 
nobody  thought  of  taking  an  account  of  small  sums  which 
a  father  had  given  to  his  children  whether  they  were 
under  or  over  age."  ^ 

bQQ.  Same — Disposal  of  Items  in  Foregoing  Sec- 
tions— "Setting  Up  in  Business." — In  disposing  of  the 
case,  the  court  decreed  that  the  entrance  fee  to  the  Middle 
Temple  paid  for  the  plaintiff,  the  sums  paid  for  plaintiff's 
commission  and  outfit,  and  the  aggregate  sum  of  £845 
paid  for  his  establishment  in  business,  were  advance- 
ments. This  was  upon  the  ground  that  these  payments 
w^ere  for  the  purpose  of  "  setting  up  "  the  plaintiff  in 
three  different  callings.  Each  payment  was  a  provision 
within  that  portion  of  the  English  Statute  of  Distribu- 
tions which  declares  that  any  gift,  made  as  such,  shall  be 
accounted  for  by  the  recipient  thereof  before  he  can  share 
in  the  estate  of  the  intestate  from  whom  he  received  the 
gift.  The  other  items  received  by  the  plaintiff  were  held 
not  to  be  advancements.     The  sums  that  had  been  given 

'  2  p.  Wras.  435. 

2  L.  R.  4  Eq.  305 ;  S.  C.  36  L.  J.  Ch.  877. 

'Taylor  v.  Taylor,  L.  R.  20  Eq.  155  ;  S.  C.  41  L.  J.  Ch.  718. 


Presumption — Trusts.  559 

to  the  defendant  were  held  not  to  have  been  advance- 
ments, and  therefore  he  was  not,  in  order  to  share  the 
estate  with  his  brother,  bound  to  bring  those  sums  into 
hotchpot.^ 

567.  Cost  of  Education. — Money  expended  by  a 
father,  or  even  a  mother,  in  the  education  of  his  child  are 
lyrima  facie  gifts  and  not  advancements,  as  we  have  seen 
in  the  three  preceding  sections.  This  was  very  well  put 
in  a  Pennsylvania  case.  "  As  a  general  rule,"  said  the 
court,  "  money  expended  in  the  education  of  a  child,  is 
not  presumed  to  be  an  advancement.  The  presumption 
is  that  the  parent  makes  these  expenditures  in  the  dis- 
charge of  his  parental  duties,  and  that  all  his  children 
are  treated  with  equality  in  this  respect.  But  this  pre- 
sumption may  be  repelled  by  evidence.  The  tastes,  tal- 
ents, and  constitution  of  one  child  may  be  of  such  a  na- 
ture as  to  induce  the  parent  to  believe  that  the  expendi- 
ture of  a  large  portion  of  his  inheritance,  by  anticipation, 
to  advance  him  in  the  art  or  profession  for  which  he 
evinces  peculiar  tastes  and  qualifications,  might  greatly 
promote  his  interests  and  happiness  ;  while  the  same  ad- 
vanta2;e  mis-ht  be  secured  to  the  other  children,  havino; 
dissimilar  inclinations  and  abilities,  by  giving  to  them,  in 
some  other  form,  their  equal  share  of  the  estate.  If  a 
parent  disposes  of  his  estate  in  this  way,  and  from  motives 
of  this  character,  who  shall  gainsay  the  justice  or  pro- 
priety of  his  decision  ?     The  law  does  not  condemn  it. 

'That  money  spent  in  setting?  up  a  son  in  business  is  an  advancement,  see 
M'Rae  V.  M'Rae,  3  Bra.If.  199;  Sanford  v.  Sanford,  61  Barb.  293;  and  Meadows 
V.  Meadows,  11  Ired.  L.  148.  Army  commission  is  an  advancement:  Kircu- 
bright  V.  Kircubrislit,  8  Ves.  51 ;  Boyd  v.  Boyd,  L.  R.  4  Eq.  Cas.  305  ;  S.  C.  36  L. 
J.  Ch.  877 ;  15  W.  R.  1071 ;  16  L.  f.  N.  S.  660 ;  Andrew  r.  Andi  ew,  30  L.  T.  N. 
S.  457  ;  22  W.  R.  682.  S  )  much  of  tliis  opinion  as  holds  that  a  gift  to  pay  a  debt 
is  not  an  advancement  has  been  overruled :  Blockley  v.  Blockley,  29  L.  R.  Ch. 
Div.  250 ;  S.  C.  54  L.  J.  Ch.  722  ;  33  W.  R.  777. 


560  Advancements. 

Ou  the  contrary,  a  judicious  advancement  of  eacli  child, 
in  pursuits  which  accord  with  its  taste  and  capacity,  may 
be  the  best  means  of  promoting  its  own  happiness,  as  well 
as  its  usefulness  to  society."  ^  A  statute  of  South  Caro- 
lina provides  that  a  child  should  be  charged  with  the 
value  of  an  advancement,  which  value  should  be  estimated 
as  of  the  date  of  the  ancestor's  death.  The  court  consid- 
ered that  this  alone  was  an  utter  refutation  of  the  claims 
that  the  expenses  of  an  education,  professional  or  other- 
wise, should  be  charged  as  an  advancement.  "It  is  not 
the  sum  expended,^''  said  the  court,  "  but  the  thing  which 
is  bought  with  it — the  thing  received  by  the  child — which 
constitutes  the  advancement ;  nor  is  the  cost  of  the  pur- 
chase the  measure  of  the  value  of  the  thing  advanced. 
The  rule  of  the  statute  is  that  the  advancement  is  to  be 
estimated,  not  at  what  it  cost,  nor  even  at  its  value  when 
given  by  the  parent,  but  according  to  its  value  at  the  par- 
ent's death.  No  matter  whether  the  negro  which  a  father 
bestows  on  his  son  cost  him  much  or  little,  it  is  the  value  of 
such  a  negro  at  the  father's  death  which  is  to  be  charged  to 
the  son.  So  here,  if  the  education  of  young  May,  general  or 
professional,  is  to  be  considered  an  advancement,  its  value  is 
to  be  estimated  by  its  intrinsic  worth,  and  not  by  the 
money  expended  in  procuring  it.  Such  is  the  imperative 
direction  of  the  statute  ;  and  I  am  at  a  loss  for  any  rule 
by  which  a  money  valuation  can  be  placed  upon  the 
mental  proficiency  resulting  from  education,  whether  of 
one  kind  or  the  other."  ^  The  court  did  not,  however, 
rest  its  decision  exclusively  upon  this  statute,  but  also 
rested  it  upon  the  general  rule  that  there  is  no  presumj^- 
tion  that  a  parent  intended  moneys  paid  for  the  educa- 
tion of  a  child  to  be  an  advancement.     Other  cases  are  to 

'  Riddle's  Estate,  19  Pa.  St.  481 ;  Bradsher  v.  Cannady,  76  N.  C.  445. 
^  Cooner  v.  May,  3  Strobh.  Eq.  185. 


Presump  Hon —  Trusts.  561 

the  same  effect.^  Even  money  paid  for  a  professional 
education  of  the  child  is  not  deemed  an  advancement.^ 
Nor  is  there  such  a  presumiDtion  where  security  is  taken 
from  the  child  for  the  amount  received,  or  where  the  parent 
attempts  to  procm'e  evidence  of  it  as  a  debt,  by  note, 
bond,  book  account,  or  otherwise.  Thus  where  a  parent 
expended  money  for  the  education  of  his  son,  which  he 
charged  against  the  son  in  his  **  day  book  "  (wherein  he 
kept  his  accounts,  and  in  which  the  son  was  credited  for 
partial  repayments)  and  not  in  a  "  family  book,"  where 
advanced  portions  are  usually  entered,  it  was  held  that 
the  money  so  furnished  was  not  an  advancement,  but  a 
debt  due  from  the  son,  intended  to  be  such  by  the  father 
when  it  was  expended  for  the  use  of  the  son.^  But  there 
is  no  doubt  that  if  a  parent  intended  money  expended  in 
educating  a  child  should  be  an  advancement,  and  that  in- 
tent should  be  clearly  shown,  the  court  would  so  ad- 
judge.* 

568.  Trifling  Sums  or  Articles — Watch — Horse 
— Furniture. — Trifling  sums  of  money  paid  a  child,  or 
small  presents  made  him,  are  not  deemed  advancements.^ 

>  Pusey  V.  Desbouvrie,  3  P.  Wms.  320  ;  Edwards  v.  Freeman,  2  P.  Wms.  435 ; 
Mitchell' t;.  Mitchell,  8  Ala.  414  ;  Fernell  v.  Henry,  70  Ala.  484. 

*  White  V.  Moore,  23  S.  C.  456  ;  Cooner  v.  May,  3  Stroth.  Eq.  185. 

3  Miller's  Appeal,  40  Pa.  St.  57.  See  Riddle's  Estate,  19  Pa.  St.  431  ;  Lentz  v. 
Hertzog,  4  Whart.  520.  In  some  instances  money  expended  for  an  education  is 
an  advancement :  Reynolds  v.  Reynolds,  13  Ky.  L.  Rept.  793;  Succession  of 
Montamat,  15  La.  Ann.  332;  Succession  of  Tournillon,  15  La.  Ann.  2G3.  In 
Missouri  it  was  held  that  where  the  elder  set  of  children  were  educated  before 
tlie  younger  set  were  born,  the  cost  of  educating  the  elder  should  be  eqii.ilized 
with  the  cost  of  educating  the  younger,  in  the  distribution  of  the  estate :  State  v. 
Stephenson,  12  Mo.  178,  and  see  Duling  v.  Johnson,  32  Ind.  155.  Morris  v. 
Burroughs,  1  Atk.  399,  cannot  be  regarded  as  an  authority. 

*See  Robinson  r.  Robinson,  Brayt.  (Vt.)  59. 

*  Mitchell  V.  Mitchell,  8  Ala.  414;  Taylor  v.  Taylor,  L.  R.  20  Eq.  155  ;  S.  C. 
44  L  J.  Ch.  718;  Cooner  r.  May,  3  Strobh.  Eq.  185;  Sandford  v.  Sandford,  61 
Barb.  293;  Pusey  v.  Desbouvrie,  3  P.  Wms.  320;  Fennell  v.  Henry,  70  Ala.  4S4; 

36 


562  Advancements. 

Thus  a  horse  and  saddle  was  held  not  to  be  an  advance- 
ment, though  the  gift  of  a  stallion  as  a  foal-getter  was 
said  to  be  such.^  So  a  gift  of  a  watch  made  with  a  view 
to  equalize  the  donee  with  the  other  children  was  charged 
to  him  as  an  advancement.^  So  a  gift  of  furniture  to  a 
child,  especially  on  its  marriage,  is  presumed  to  be  an 
advancement ;  ^  but  this  may  not  be  so  if  the  father  is 
possessed  of  ample  property  or  means.^ 

569.  Contingent  Interest — Annuity. — A  future  or 
contingent  interest  or  provision  made  for  a  child  is 
deemed  an  advancement,  if  the  contingency  is  to  take 
place  in  a  reasonable  time,  as  where  a  portion  was  payable 
at  the  age  of  eighteen  or  on  marriage.  So  an  annuity 
settled  upon  a  child  is  also  deemed  an  advancement.^  In 
a  Maryland  case  it  was  said  that  "  it  is  not  necessary  to 
constitute  an  advancement,  that  the  provision  should  take 
place  in  the  j^arent's  lifetime.  A  portion  secured  to  the 
child  in  faturo,  or  to  commence  after  the  father's  death, 
or  upon  a  contingency  that  has  happened,  or  to  arise 
within  a  reasonable  time,  is  an  advancement."  ^ 

Bac.  Abr.  tit.  Exrs.  K.  In  Crosby  v.  Covington,  24  Miss.  619,  it  is  said  to  be  a  ques- 
tion for  the  jury,  and  this  is  no  doubt  true  where  some  evidence  is  given  tending 
to  rebut  the  presumption  that  it  is  an  advancement.  Considerable  sums  are  not  so 
treated:  Boyd  v.  Boyd,  4  L.  E.  Eq.  Cas.  305  ;  S.  C.  36  L.  J.  Ch.  877;  15  W.  R. 
1071 ;  16  L.  T.  N.  S.  660. 

'  Ison  V.  Ison,  5  Rich.  Eq.  15. 

^  Glenn,  Ex  parte,  20  S.  C.  64. 

^Shiver  r'.  Brock,  2  Jones  Eq.  137,  and  Hollister  v.  Attmore,  5  Jones  Eq  373; 
Pratt  V.  Pratt,  2  Strange,  935 ;  S.  C  Fitzg.  284.  Contra,  Johnson  v.  Belden,  20 
Conn.  322.     See  Kilpin  v.  Ratley  [1892],  1  Q.  B.  582. 

*  King's  Estate,  6  Whart.  370;  Fennel!  v.  Henry,  70  Ala.  484. 

*  Edwards  v.  Freeman,  2  P.  Wnis.  435. 

sClarkw.Willson,  27  Md.  693  ;  see  Wilkes  v.  Greer,  14  Ala.  337  ;  Hook  v.  Hook, 
13  B.  Mon.  526.  That  the  eldest  son  in  England  is  not  accountable  for  an  annuity 
in  land,  see  Chantrell  v.  Chantrell  37  L.  T.  N.  S.  220.  See,  also,  where  daughters 
were  not  charged  with  annuities :  Hatfield  v.  Minet,  8  L.  R.  Cb.  136  ;  S.  C.  47  L.  J. 
Ch.  612 ;  38  L.  T.  N.  S.  629 ;  26  W.  R.  701 ;  reversing  46  L.  J.  Ch.  812. 


Presumption — Trusts.  oG3 

570.  Parent  Paying  Debt  of  Child. — Where  a 
father  pays  off  a  debt  owed  by  his  son  to  a  third  person, 
the  law  presumes  the  money  paid  is  an  advancement, 
unless  it  is  shown  by  proof,  or  circumstances,  that  it  was  not 
intended  to  be  an  advancement.^  Such  is  the  case  wdiere 
a  father  pays  off  a  purchase-money  debt  the  son  owes  on 
real  estate  that  he  has  purchased."^  Especially  is  this  so 
when  the  father  treats  the  payment  as  an  advancement 
and  not  a  debt.^  A  number  of  cases,  however,  hold  that 
the  presura]3tion  is  that  by  the  23ayment  the  son  becomes 
indebted  to  the  father,  and  that  there  is  no  advancement.'' 
And  if  the  father  has  become  the  surety  of  the  son  and 
he  has  been  compelled  to  pay  the  debt,  the  presumption 
is  that  it  is  a  claim  he  holds  against  the  son,  and  that  the 
payment  is  not  an  advancement.^ 

571.  Child  Executing  Note  to  Parent  for  Money 
Advanced. — If  a  parent  take  a  note  or  security  from  a 
child  for  money  loaned  or  otherwise  given  him,  the  pre- 
sumption is  that  the  amount  thus  loaned  or  given  is  a 
debt  and  neither  a  gift  nor  an  advancement ;  ^  but  the  pre- 

»Dilley  v.  Love,  61  Md.  603,  612;  Jolinson  v.  Hoyle,  3  Head.  56.  Where  ;i 
father  was  surety  for  his  daughter,  but  the  debt  as  to  her  was  void  because  of  her 
coverture ;  and  tlie  father  p;ud  the  debt,  it  was  held  that  the  j)ayment  was  uot  an 
adviincement  as  against  her  children  :  Morr's  Appeal,  80  Pa.  St.  427  ;  Succession 
of  Tournilion,  15  La.  Ann.  263;  Higham  v.  Vanosdol,  125  Ind.  74. 

^'O'Neale  v.  Dunlap,  11  Rich.  Eq.  405;  Catoe  v.  Catoe,  32  S.  C.  595.  As  to 
gaming  debt,  see  Carter  v.  Cutting,  5  Munf.  223. 

*  Reynolds  v.  Reynolds  (Ky.),  18  S.  W.  Rep.  517. 

*Vaden  v.  Hance,  1  Head.  300;  Rains  r.  Hayes,  2  Tenn.  Ch.  600;  White  v. 
Moore,  23  S.  C.  456 ;  Hagler  v.  McCombs,  66  N.  C.  345. 

^Hart  V.  Chase,  46  Conn.  207;  White  v.  Moore,  23  S.  C.  456;  Berry  v.  Mors.', 
1  H.  L.  Cas.  71 ;  Johnson  v.  Belden,  20  Conn.  322.  Thus  where  father  and  .m>ii 
gave  a  note  for  the  purchase-money  of  Innd  sold  to  the  son,  and  the  father  piii-l 
tiie  note,  and  the  land  was  then  conveyed  by  the  purchaser  to  the  son,  it  was  held 
that   this  was  not  an  advancement:  Wliite  v.  Moore,  supra. 

«Grey  v.  Grey,  22  Ala.  233;  West  v.  Bolton,  23  Ga.  531  ;  Batton  v.  Allen,  1 
Hal.  Cii.  99;  Bruce  v.  Griscom,  9  Hun,  280;  S.  C.  70  N.  Y.  612;  Kintz  v. 
Friday,  4  Dem.  540;  Mann  v.  Mann,  12  Heisk.  245;  Fennell  v.  Henry,  70  Ala. 
484;  Jones's  Estate,  29  Pitts.  L.  Jr.  89. 


564  Advancements, 

sumption  that  it  is  a  debt  and  not  an  advancement  may 
be  repelled  by  parol  proof/  And  it  is  still  a  debt  though 
the  parent  never  intended  to  collect  it  unless  he  needed 
the  funds  during  his  life.^  It  is  error  to  allow  a  note 
given  by  a  son  to  his  father  to  go  to  the  jury  "  as  evidence 
of  an  advancement."  ^  Where  a  father  agreed  that  a  note 
he  held  against  his  son  should  be  taken  as  an  advance- 
ment, and  afterward  changed  his  mind,  it  was  held  that 
he  was  not  bound  by  the  agreement,  and  could  collect  the 
amount  due  thereon.^ 

572.  Receipt  for   Debt — Surrender   of  Note  or 
Bond. — The  release  of  a  debt  by  a  father,  owed  him  by 

^  Fennell  v.  Henry,  70  Ala.  484 ;  S.  C.  45  Am.  Rep.  88. 

^  House  V.  Woodard,  5  Coldw.  196.  If  an  heir  to  an  estate  is  indebted  to  it, 
this  debt  may  be  treated  as  an  advancement  when  it  is  less  than  the  distributive 
share  of  such  heir  would  be  after  the  debt  is  added  to  the  amount  of  the  assets 
of  the  estate:  Springer's  Appeal,  29  Pa.  St.  208. 

There  are  many  cases  to  the  effect  that  a  bond  or  note  given  by  a  child  to  a 
father  for  money  received  is  presumed  to  be  a  debt  and  not  an  advancement : 
High's  Appeal,  21  Pa.  St.  283;  Roland  r.  Schrack,  29  Pa.  St.  125;  Miller's 
Appeal,  31  Pa.  St.  337;  Chusty's  Appeal,  1  Grant  (Pa.),  369;  Harris's  Appeal,  2 
Grant  (Pa.),  304;  Seagrist's  Appeal,  10  Pa.  St.  424;  Whelen's  Appeal,  70  Pa.  St. 
410;  Dawson  v.  Macknet,  42  N.  J.  Eq.  633;  Batton  v.  Allen,  1  Hal.  Ch.  99; 
Harley  V.  Harley,  57  Md.  340;  Denman  v.  McMahin,  37  Ind.  241;  Harris  v. 
Harris,  69  Ind.  181 ;  Brook  v.  Latimer,  44  Kan.  431 ;  Grey  v.  Grey,  22  Ala. 
233. 

This  is  especially  true  if  tlie  son  pay  interest  on  the  note:  Levering  v.  Kitten- 
house,  4  Wliart.  130:  Harris's  Appeal,  2  Grant  (Pa.),  304. 

3  Grey  v.  Grey,  22  Ala.  233. 

*  Denman  v.  M'Mahin,  37  Ind.  241.  To  a  complaint  on  a  note  an  answer  show- 
ing that  the  payee  was  the  father  of  the  maker  ;  that  the  payee  was  wealthy ; 
that  prior  to  the  execution  of  the  note  the  father  gave  the  son  two  horses,  stating 
at  the  time  that  the  horses  were  an  advancement ;  that  the  son  was  then  a  minor 
working  on  his  father's  farm  and  making  a  member  of  his  family  ;  that  when  he 
became  of  age,  at  the  request  of  iiis  father,  he  executed  the  note  sued  on  upon  the 
representation  that  it  was  ne^er  to  be  paid,  but  only  to  be  held  as  evidence  of  an 
advancement;  and  that  the  son,  confiding  in  such  representations,  and  believing 
them  to  be  true,  signed  the  note,  states  a  good  defense :  Harris  v.  Harris,  69  Ind. 
181.  In  Alabama  parol  evidence  is  not  admissible  to  show  that  such  a  note  was 
an  advancement ;  but  this  is  contrary  to  the  general  rule:  Fennell  v.  Henry,  70 
Ala.  484. 


Presumption — Trusts.  565 

his  son,  with  the  intention  thereby  to  prefer  the  son  is  an 
advancement  and  not  a  gift ;  so  the  cancellation  of  notes 
held  by  a  father  against  a  son,  with  a  like  intent,  has  the 
same  effect.^  So  if  the  intention  of  the  donor  is  not  made 
to  appear  on  the  face  of  the  receipt,  or  it  is  only  shown 
that  there  is  a  release  of  the  debt  so  that  the  donor  could 
not  collect  it  if  he  were  an  heir,  then  the  presumption  is 
that  the  release  of  the  debt  was  intended  to  be  an  advance- 
ment and  not  a  gift ;  especially  is  this  so  when  the  amount 
released  is  large,  or  it  is  something  more  than  a  mere 
trifling  sum,  and  approaches  an  amount  appreciably  re- 
ducing the  donee's  portion  of  his  parent's  estate.  In  some 
States,  however,  the  intent  of  the  donor  is  not  a  matter  of 
consideration ;  for  the  statute  arbitrarily  says  that  the 
transaction  shall  be  taken  and  deemed  an  advancement.'^ 

'Bridgers  v.  Hutchins,  11  Ired.  L.  G8 ;  Gilbert  v.  Wetherell,  2  Sim.  &  St.  254; 
Austin  I'.  Palmer,  7  N.  S.  (La.j  21  ;  Planner  v.  Winbiirn,  7  Ired.  Eq.  142.  But  a 
promise  to  cancel  them,  or  forgive  the  debt,  is  not  a  gift  nor  an  advancement: 
Denman  i).  M'Mahin,  37  Ind.  241. 

2  Rees  V.  Rees,  11  Rich.  Eq.  86  ;  Glenn,  Ex  parte,  20  S.  C.  64.  A  testator  directed 
bv  will  that  ''  all  charges  against  any  of  my  children  standing  on  my  bonks  at  the 
time  of  my  decease,  shall  be  void;"  and  his  son,  being  liis  executor,  claimed  a 
credit  of  $1,040,  the  amount  of  his  note  to  the  testator  and  which  the  son  in- 
cluded in  the  inventory.  This  note  was  never  entered  in  the  testator's  book,  though 
another  of  earlier  date  for  $1,020,  of  which  the  last  note  was  claimed  to  be  a  re- 
newal, had  been  so  entered  and  the  entry  afterward  erased.  It  was  held  that 
there  was  nothing  on  the  testator's  books  to  bring  the  note  within  the  discharging 
clause  of  the  will,  and  that  the  son  must  account  for  the  amount  he  thus  owed  the 
estate:  Brolasky's  Estate,  3  Penny.  329.  A  son-in-law,  after  the  death  of  his 
wife  (who  had  left  children),  received  from  her  father  a  large  sura  of  money,  "  in 
part  of  my  former  wife's  share  of  his  personal  estate  as  willed  to  her,  which  sura  I 
bind  myself  to  account  for  to  his  executors  and  his  other  legatees  in  the  final 
settlement  of  his  estate,  without  interest."  This  was  hehl,  after  the  death  of  the 
father,  to  be  a  loan  due  the  estate,  which  could  be  collected  before  the  final  ac- 
count of  the  administrator  had  been  rendered  ;  and  that  the  son-in  law  was  not 
entitled  to  set  it  off  against  anything  that  might  be  due  from  the  estate :  Craig  v. 
Moorhead,  44  Pa.  St.  97.  See  Caylor  v.  Merchant,  5  West,  L.  Mag.  194.  A  father 
conveyed  land  to  his  son  at  the  price  of  $1,200,  and  took  the  son's  note,  payable 
to  him,  for  $200,  with  interest,  and  for  the  remaining  $1,000  took  from  the  son  a 
receipt  as  follows:  "Received  of  B  O  [the  father]  $1,000  for  the  use  without 
interest  received  by  me.    DO"  (the  son).   It  was  held  that  this  $1,000  was  not  an 


B66  Advancements. 

573.  Child  Purchasing  Property  with  Parent's 
Money. — If  a  child,  intrusted  witii  its  parent's  money, 
purchase  property,  as  land,  in  his  own  name,  and  it  is,  in 
the  case  of  land,  so  conveyed  to  him  without  the  knowl- 
edge or  consent  of  the  parent,  the  son  cannot  set  up  title 
to  the  property  or  land,  as  an  advancement  to  him  on  the 
part  of  the  parent ;  but  if  the  purchase  was  so  made  with 
the  consent  of  the  j)arent,  or  if  the  deed  was  so  made  with 
his  consent,  the  presumption  is  that  it  was  intended  as  an 
advancement,  which  presumption  may  be  rebutted  by 
parol  evidence,  by  declarations  of  the  parties,  and  by  cir- 
cumstances contemporaneous  with  the  transaction  itself.^ 
The  uninterrupted  possession  of  the  parent,  claiming  title 
adversely  to  the  deed,  will  rebut  the  presumption  of  an 
advancement.^     Where  a  son  purchased  land  in  his  own 

advancement,  but  simply  a  part  of  the  consideration  for  the  conveyance,  payable 
to  the  father,  but  in  the  hands  of  the  son  to  use  witliout  interest  until  the  father 
sees  proper  to  require  its  payment :  Overholser  v.  Wright,  17  Ohio  St.  157.  A 
father  was  accustomod  to  make  loans  to  his  children,  keeping  memoranda  of 
the  same  as  advancements.  His  son  bought  land  from  a  third  person,  borrow- 
ing the  purchase-money  from  the  father,  who  paid  it  to  the  vendor,  taking  the 
title  in  his  own  name  as  security.  By  his  will  tlie  father  directed  that  in  the  dis- 
tribution of  his  estate  an  account  should  be  taken  of  the  amounts  advanced  to, 
and  the  debts  due  from,  his  children.  It  was  held  that  the  son  in  equity  was  the 
owner  of  the  land,  the  father  was  the  mortgagee,  and  the  amount  so  paid  for  the 
land  at  the  instance  of  the  son  was  an  advancement  to  him  :  Chiles  v.  Gallagher, 
67  Miss.  413. 

AVhere  a  testator  stated  in  his  will  that  he  held  certain  notes  on  a 
legatee  which  he  was  to  pay  to  his  estate  ;  and  on  such  legatee  becoming  the 
executor,  produced  a  receipt  for  a  large  sum  signed  by  the  testator,  staling  that 
the  amount  therein  mentioned  was  to  be  a  credit  on  the  notes  held  by  him,  it 
was  held  error,  on  the  trial  of  a  bill  for  an  account  filed  against  such  executor  by 
the  other  legatees,  for  the  court  to  charge  the  jury  that  if  they  should  find  the  notes 
extinguished  bv  the  receipt,that  the  executor  should  account  for  the  same  as  an  ad- 
vancement. The  question  was  held  to  be  whether  the  notes  were  extinguished 
during  the  life  of  the  testator ;  for  if  they  were  not,  they  could  pass  under  the 
will ;  otherwise  they  could  not.  The  question  of  advancement,  therefore,  was 
not  involved  :  Thrasher  v.  Anderson,  51  Ga.  542. 

^Peer  v.  Peer,  3  Stock.  432;  Gregory  v.  Winston,  23  Grat.  102  (mother's 
money);  Mullen  v.  Mullen,  2  Am.  L.  Rec.  611. 

'^  Peer  v.  Peer,  supra. 


Presump  tion —  Trusts.  567 

name,  with  his  father's  money,  and  the  father  did  not 
seem  to  know  he  had  so  purchased,  and  in  a  will,  not 
sufficiently  attested,  he  attempted  to  give  the  property  to 
the  son  ;  it  was  held  that  the  land  so  purchased  was  an 
advancement  to  the  son.^ 

574.  Donor  Purchasing  Property  with  Money 
Charged  as  an  Advancement. — If  a  father  charge 
money  to  a  child  as  an  advancement  so  that  it  can  be  en- 
forced against  it  on  his  death  and  be  deducted  from  that 
portion  of  his  estate  it  would  otherwise  receive  from  his 
estate,  and  then  take  the  amount  as  a  part  of  the  advance- 
ment and  invest  it  in  property  in  his  own  name,  a  trust 
in  such  property  arises  in  its  favor ;  and  this  is  true 
though  it  furnishes  part  of  the  purchase-money.^  It  must 
be  shown  that  the  property  was  purchased  with  the  money 
thus  advanced ;  and  in  the  absence  of  proof  of  the  actual 
advancement  appropriated  at  the  time  of  the  purchase,  a 
letter  written  by  the  intestate  two  years  after  the  pur- 
chase, disclosing  a  promise  and  intention  that  the  child 
should  have  the  property,  is  insufficient  to  show  an  ad- 
vancement or  establish  a  trust.^ 

1  Douglas  V.  Brice,  4  Rich.  Eq.  322. 

"  Beck  V.  Gravbill,  28  Pa.  St.  66.  In  this  case  the  father  conveyed  the  land  to 
one,  who  liad  a  wife  at  the  time  but  afterward  married  his  child  thus  advanced. 
The  husband  claimed  the  land  by  virtue  of  the  cash  payment  and  advancement; 
but  it  was  held  that  he  had  no  title  even  though  an  independent  purchaser  ig- 
norant of  her  equitable  title. 

3  Wolff's  Appeal,  123  Pa.  St.  438. 

A  father  made  an  advancement  to  one  of  his  sons  and  took  from  him  a  cove- 
nant, by  which  he  agreed  "that  he  would  pay  to  his  brothers  and  sisters,  on 
final  settlement  of  his  father's  estate,  without  interest,  whatever  sum  or  sums  of 
money  he  had  received,  if  above  his  ratable  part  of  said  estate."  Afterward, 
the  father  borrowed  a  sum  of  money  from  his  son  (not  equal  to  the  amount  ad- 
vanced) and  gave  his  bond  for  it.  It  was  held  tliat  the  brotliers  and  sisters,  not 
advanced,  had  no  right  to  restrain  the  collection  of  this  bond  :  Webb  v.  Lyon,  5 
Ired.  Eq.  67. 

Where  a  father,  in  debt,  conveyed,  by  way  of  gift  or  advancement,  his  land  to 
his  children  ;  and  two  sons,  in  part  consideration  of  the  portion  conveyed  to 


568  Advancements. 

575.  Note  of  Father — Sealed  Bill. — Of  course,  a 
promissory  note,  without  consideration,  promising  to  pay 
a  child  a  certain  sum  of  money  is  void,  and  cannot  be  en- 
forced against  the  maker's  estate.  Consequently,  such  a 
note  cannot  be  an  advancement.  But  such  is  not  the 
case  of  a  sealed  note ;  for  such  a  note  is  valid,  and  when 
collected  the  amount  so  collected  is  an  advancement,  if  it 
appears  that  no  actual  consideration  was  given  for  it.^ 

576.  Purchase  or  Gift  by  Mother  for  or  to 
Her  Child. — A  mother  does  not  rest  under  the  same 
moral  obligation  to  provide  for  her  child  as  a  father,  so 
that  proof  of  a  mere  purchase  by  a  mother  in  the  name  of 
her  child  will  not  raise  a  presumption  of  an  advancement, 
but  of  a  trust.  Speaking  of  the  presumption  that  arises 
from  a  purchase  by  a  father  in  the  name  of  a  child,  the 
Master  of  the  Rolls,  Jessel,  said  :  "  It  is  clear  that  in  that 
case  the  presumption  can  only  arise  from  the  obligation, 
and,  therefore,  in  that  case,  the  doctrine  can  only  have 
reference  to  the  obligation  of  a  father  to  provide  for  his 
child,  and  nothing  else.  But  the  father  is  under  that 
obligation  from  the  mere  fact  of  his  being  the  father,  and 
therefore  no  evidence  is  necessary  to  show  that  obligation 
to  provide  for  his  child,  because  that  is  part  of  his  duty. 
In  the  case  of  a  father,  you  have  only  to  prove  the  fact 
that  he  is  the  father,  and  when  you  have  done  that  the 
obligation  at  once  arises ;  but  in  the  case  of  a  person  loco 
parentis  you  must  prove  that  he  took  upon  himself  the 

them,  agreed  to  pay  his  debts  ;  it  was  held,  in  a  suit  by  a  judgment  creditor, 
whose  debt  accrued  before  tlie  division,  to  subject  tlie  lands  so  conveyed  to  the 
payment  of  his  judgment,  that  the  lands  so  conveyed  to  these  two  sons  ought  to 
be  first  subjected  to  the  judgment,  and  that  the  amount  of  recovery  specified  in 
the  judgment,  in  the  absence  of  fraud  was  conclusive  evidence,  both  as  to  the  fact 
and  amount  of  the  indebtedness  :  Swihart  v.  Shaum,  24  Ohio  St.  432. 
^Shotwell  V.  Struble,  21  N.  J.  Eq.  31. 


Presump  t  lo  n —  Trusts.  5G9 

obligation.  But  in  our  law  there  is  no  moral  legal  obli- 
gation— I  do  not  know  how  to  express  it  more  shortly — 
no  obligation  according  to  tlie  rule  of  equity — on  a 
mother  to  provide  for  her  child  ;  there  is  no  such  obliga- 
tion as  a  court  of  equity  recognizes  as  such.  From  Holt  v. 
Frederick^  downward  it  has  been  held  that  no  such  obli- 
gation exists  on  the  part  of  a  mother ;  and  therefore,  when 
a  mother  makes  an  advancement  to  her  child,  that  is  not 
of  itself  sufficient  to  afford  the  presumption  in  law  that  it 
is  a  gift,  because  equity  does  not  presume  an  obligation 
which  does  not  exist."  This  was  a  case  between  the 
mother  and  her  son's  estate,  and  while  the  question  was 
one  of  gift  and  not  a  question  of  advancement  between  the 
heirs  of  the  mother,  yet  it  is  quite  in  point ;  for  every 
advancement  is  a  perfected  gift.^ 

577.  Rule  of  Presumption  Applies  to  a  Gift  to  a 
Daughter. — In  the  case  of  an  advancement  to  a  daugh- 
ter, it  has  been  said  that  the  presumption  is  not  so  strong 
against  a  resulting  trust  as  in  the  case  of  a  gift  to  a  son  ;  ^ 
but  this  distinction  has  been  contradicted  by  a  number  of 
decisions.* 

578.  Purchase  by  Grandfather  in  Name  of  Grand- 
child.— Where  a  child's  father  is  dead,  and  the  child's 

1 2  p.  Wms.  356. 

"^  Bennet  v.  Benaet,  10  L.  R.  Ch.  D.  474 ;  S.  C  27  W.  R.  573 ;  40  L.  T.  378.  The 
Master  of  the  Rolls  reviews  Re  De  Visorae,  33  L.  J.  Ch.  332;  2  D.  J.  &  S. 
17;  Sayre  v.  Huglies,  L.  R.  5  Eq.  376;  S.  C.  16  W.  R.  662;  18  L.  T.  N.  S. 
347  ;  37  L.  J.  Ch.  401.  See,  also,  Stone  v.  Stone,  3  Jur.  N.  S.  708,  and  Garrett 
V.  Wilkinson,  2  De  G.,  G.  &  Sm  244;  Evans  v.  Maxwell,  50  L.  T.  N.  S.  51  ; 
Batstone  v.  Salter,  10  L.  R.  Ch.  App.  431  ;  S.  C.  L.  R.  19  Eq.  (^as.  250.  If  tlie 
mother  is  a  widow,  the  courts  are  inclined  to  lean  toward  the  view  that  the  trans- 
action is  either  a  gift  or  an  advancement :  Evans  v.  Maxwell,  50  L.  T.  61.  In 
some  American  cases  this  distinction  between  the  presumption  of  a  gift  by  a 
father  and  mother  is  not  noticed  :  Watson  v.  Murray,  54  Ark.  499. 

'Gilb.  Lex.  Pract.  272. 

*  Lady  Gorge's  Ca.se,  cited  Cro-  Car.  550  ;  2  Swanst.  600 ;  Jennings  v.  Selleck,  1 
Vern.  467  ;  see  Woodman  v.  Morrel,  2  Freem.  33  ;  Clark  v.  Danvers,  1  Ch.  Cas.  310. 


570  Advancements. 

grandfather  purchases  land  in  the  name  of  such  child, 
the  presumption  is  that  it  is  an  advancement  and  not 
a  trust.^ 

579.  Gift  by  Husband  to  Wife. — Gifts  by  a  husband 
to  his  wife  are  usually  regarded  purely  as  gifts  and  not  as 
advancements ;  but  in  several  States  statutes  put  her  on 
the  same  footing  as  children,  and  she  is  required  to  ac- 
count for  a  gift,  in  the  division  of  her  husband's  estate, 
the  same  as  if  she  were  his  child  and  had  received  the 
gift.  It  therefore  becomes  of  interest  to  examine  the 
cases  in  view  of  these  facts.  If  a  husband  convey  real 
2)roperty  to  his  wife,  or  purchase  real  property  in  her 
name,  he  paying  the  purchase  price ;  or  if  he  give  her 
personal  j)roperty,  or  purchase  personal  property  for  her 
and  pay  the  purchase  price  out  of  his  own  funds,  the 
transaction  is  either  a  gift  or  an  advancement,  jo?'ima/«cie, 
and  she  is  not  liable  to  account  for  its  value  either  to  him 
or  his  personal  representatives.^     But  this  rule  does  not 

^Soar  r.  Foster,  4  K.  &  J.  152. 

*  Gadbiuy,  In  re,  11  W.  R.  895  ;  S.  C.  32  L.  J.  Ch.  780 ;  Drew  v.  Martin,  3  Hem. 
&  M.  130;  10  Jur.  N.  S.  356;  33  L.  J.  367;  Kingdon  v.  Bridges,  2  Vern.  67; 
Christ's  Hospital  v.  Budgin,  2  Vern.  683;  Futheree.  ^.  Fletcher,  31  Miss.  265; 
Spring  V.  Hight,  22  Me.  408;  Maxwell  v.  Maxwell,  109  111.  588;  Boyd  v.  White, 
32  Ga.  530;  Wormley  v.  Wormlev.  98  III.  544;  Taylor  v.  Taylor,  4  Gilm.  303; 
Bay  V.  Cook,  31  111.  336  ;  Parker  v.  Newitt.  18  Ore.  274  ;  Taylor  v.  Miles,  19  Ore. 
550;  Welton  v.  Devine,  20  Barb.  9.  A  husband  by  arrangement  with  his  wife 
and  his  two  daughters — by  a  former  marriage,  one  of  whom  was  a  minor — pur- 
chased lands  and  built  thereon,  and  paid  for  the  property  out  of  moneys  produced 
by  the  joint  labor  of  himself,  his  wife,  and  the  daughters.  The  deed  for  the 
property  was  taken  in  the  name  of  the  wif',  upon  the  understanding  that  she 
should  iiold  it  for  the  benefit  of  herself  and  husband  during  their  lives,  and  after 
tlieir  decease  it  should  go  to  the  daughters.  By  his  will  the  husband  declared  he 
had  no  real  jiroperty,  but  requested  the  wife  to  direct  her  executors  to  sell  the 
property  so  purchased,  and  divide  the  proceeds  between  the  two  daughters  and  a 
daughter  of  his  wife  by  a  former  husband.  It  was  held  that  the  purchase  could 
not  be  treated  as  an  advancement  to  the  wife;  that  there  was  a  resulting  trust  in 
favor  of  the  testator,  and  that  the  trusts  in  favor  of  the  daughters,  having  been  de- 
clared by  parol,  were  within  the  statute  of  frauds  and  void  :  Owen  v.  Kennedy,  20 
Gr.  Ch.  163. 


Presumption —  Trusts.  571 

apply  to  the  case  of  a  woman  with  whom  the  donor  lives 
as  his  wife,  or  to  his  mistress/  In  case  of  a  j)urchase  by 
the  husband  for  his  wife,  it  matters  not  that  the  purchase 
was  made  in  their  joint  names.^  Thus  if  a  husband  lend  out 
his  money  and  take  the  securities  in  their  joint  names, 
and  die,  his  wife  is  entitled  to  the  fund  by  way  of  survivor- 
ship.^ So  where  a  husband  directed  his  brokers  to  invest 
a  sum  of  money  in  stock  in  the  joint  names  of  himself  and 
wife,  and  the  next  day  they  made  the  purchase,  but  the 
transfer  was  not  made  until  after  the  death  of  the  hus- 
band, it  was  held  that  the  wife  was  entitled  to  the  stock,* 
So  where  a  husband  holding  a  note  directed  the  maker  to 
transfer  the  debt  in  his  books  into  the  names  of  himself 
and  wife,  expressing  an  intention  to  benefit  the  wife,  and 
he  cancelled  the  note  and  took  a  fresh  one  to  himself  and 
wife,  it  was  held,  the  wife  surviving  him,  that  the  debt 
belonged  to  her.'  A  sum  of  money  was  invested  in  funds 
in  the  joint  names  of  the  husband  and  wife,  and  the  wife, 
by  ])Ower  of  attorney  from  him,  sold  out  a  portion,  and 
with  his  knowledge  kept  it  locked  up  in  her  own  special 
custody  until  his  death.  The  portion  which  remained  in 
the  funds  in  their  joint  names  was  adjudged  to  be  hers, 
but  the  other  portion  to  be  a  part  of  his  estate.^  So  where 
a  husband  contracted  to  purchase  lands  in  the  names  of 
himself  and  wife,  and  died  before  the  whole  of  the  pur- 
chase-money was  paid  or  a  conveyance  executed,  it  was 
decreed  tliat  this  was  an  advancement  both  as  to  the  paid 
and  unpaid  purchase-money,  and  on  the  latter  being  paid 

'  Soar  V.  Foster,  4  Kay  &  J.  lo'i  ;  S.  C.  4  Jur.  N.  S.  406. 

-  KiDgdon  V.  Bridges,  2  Vern.  67  ;  Low  v.  Carter,  1  Beav.  426  ;  Vance  v.  Vance, 
1  Beav.  605;  Gosling  v.  Gosling  3  Drew,  335  ;  Talbot  u  Cudy,  10  Ir.  Eq.  138; 
Eykyn,  la  re,  6  L.  R.  Ch.  Div.  115 ;  S.  C.  37  L.  T.  N.  S.  261. 

'Christ's  Hospital  v.  Budgin,  2  Vern.  6S3. 

*  Vance  y.  Vance,  1  Beav  605. 

'Gosling  r.  Gosling,  3  Drew.  335. 

«i2e  Gudbuiy,  11  W.  R.  S95  ;  S.  C.  32  L.  J.  Ch.  780. 


572 


Advancements. 


oat  of  the  husband's  estate,  the  vendors  were  trustees  of 
the  property  for  her/  A  husband,  for  a  series  of  years, 
lodged  money  in  two  banks  on  deposit-receipts,  some  of 
which  were  in  his  own  name  and  some  in  the  joint  name 
of  himself  and  wife,  and  he  frequently  changed  deposits 
already  made  in  his  own  name  into  their  joint  names.  At 
his  death  there  were  in  the  two  banks  four  deposit-receipts 
in  their  joint  names  and  one  in  his,  and  it  was  de- 
creed that  these  joint  deposits  were  advancements  for  her.^ 
But  a  transfer  into  the  name  of  the  wife,  or  into  their  joint 
names  for  mere  convenience,  is  not  an  advancement.^ 

1  Drew?'.  Martin,  2  Hem.  &  M.  130  ;  S.  C.  10  Jur.  N.  S.  356  ;  33  L.  .J   Ch.  367. 

2  Talbot  V.  Cody,  10  Ir.  Eq.  1 38.     Re  Eykyn,  6  L.  R.  Ch.  115;  S.  C.  37  L.  T.  N.  S. 
261. 

3  Marshall  v.  Crutwell,  20  L.  E.  Eq.  32S  ;  S.  C.    4  L.  J.  Ch.  504. 


CHAPTER   XXI. 


EVIDENCE — REBUTTING    PRESUMPTION. 


580.  Intention  of  Donor. 

581.  Contemporaneous  Declarations  and 

Acts  of  Donor. 

582.  Contemporaneous  Declarations  and 

Acts  of  Donee. 

583.  Prior  Declarations  of  Donor. 

584.  Subsequent    Declarations    of    Do- 

nor. 

585.  Subsequent  Declarations  Admitted 

in  Certain  Forums. 

586.  Subsequent  Statements  of  Donor  to 

Donee. 

587.  Rationale  of   Doctrine  Concerning 

Subsequent  Declarations. 

588.  Contemporaneous  Acts  and  Declara- 

tions. 
539.  Admissions  of  Donee. 

590.  Conduct  of  Parties  witii  Reference 

to  Subject-Matter  of  Gift. 

591.  Donor's    Declarations    Concerning 

Other  Gifts  Made  by  Him. 

592.  Memorandum  Made  bv  Dtmor. 


593.  Will   Referring    to   Account    to 

Show  Advancements  Made. 

594.  Statute  Making  Book-Entry  Sole 

Rejiository  of  Donor's  Inten- 
tion. 

595.  Statute  Requiring  Advancement 

to  be  in  Writing. 

596.  Parol  Evidence  to  Sliow  Consid- 

eration of  Deed. 

597.  Evidence  to  Rebut  Presumption 

Arising  from  Purchase  in 
Name  of  and  Conveyance  to 
Child. 

598.  Advancement  in  Writing. 

599.  Will    Declaring  What   Shall    be 

Deemed  an  .\dvancenient 

600.  Amount    of   Intestate's    Estate — 

Value  of  Gift — Surrounding 
Facts. 

601.  Unequal  Distribution. 

602.  Burden — Sufficiency  of  Evidence 

— Question  for  Jury. 


580.  Intention  of  Donor. — "Whether  or  not  a  trans- 
action is  a  gift  or  advancement  depends  upon  the  inten- 
tion of  the  donor  unless  some  statute  intervenes,  which  is 
seldom  the  case.  The  intention  of  the  donor  lends  color 
and  fixes  the  character  of  the  transaction,  and  overrides, 
when  clearly  ascertained,  all  other  considerations.  In 
determining  the  character  of  the  transaction,  that  is  the 
centre  of  the  inquiry,  around  which  all  other  questions 
cluster,  and  toward  which  the  attention  of  the  court  and 
jury  should  be  directed.  The  intention  of  the  donor  at 
the  time  of  the  gift  is  the  one  to  ascertain,  and  not  his 

573 


574  Advancements. 

intention  before  and  after  except  in  so  far  as  the  last  two 
tend  to  show  the  former.  As  a  rule  the  intention  of  the 
donee  is  immaterial  and  not  a  question  of  inquiry  ;  for,  if 
the  donor  sees  fit  to  give,  the  intent  with  which  the  donee 
receives  is  immaterial ;  for  he  cannot  give  character 
to  the  transaction  as  between  a  gift  and  an  advancement. 
The  rule  that  the  intention  of  the  donor  must  control  is 
the  whole  foundation  for  the  admission  of  the  donor's  dec- 
larations,^ A  very  good  illustration  of  the  point  under 
discussion  occurred  in  an  English  case.  There  a  father 
transferred  stock  into  the  joint  names  of  himself,  wife, 
and  infmt  child.  This,  of  course,  raised  a  presumption 
of  an  advancement.  But  the  transferrer  swore  no  trust 
was  intended,  the  transfer  having  been  made  under  a  mis- 
apprehension of  its  legal  effect.  For  ten  years  the  father 
received  and  used  the  dividends.  At  the  time  of  the 
transfer  he  was  in  good  circumstances.  On  his  filing  a 
bill  alleging  that  he  w^as  in  extreme  want,  and  required 
the  stock  for  the  maintenance  of  himself  and  wife  and 
children,  and  alleging  that  when  he  made  the  transfer  he 
was  not  aware  that  he  was  placing  it  beyond  his  control, 
the  court  decreed  that  the  infant  child  should  be  a  trustee 

^  Williams  ?•.  Williams,  15  Lea,  438  ;  Steele  v.  Frierson,  85  Tenn.  430 ;  Mason  /•. 
Holman,  10  Lea,  315  ;  Fennell  ?•.  Henry,  70  Ala.  484  ;  Merrill  r.  Rhodes,  37  Ala. 
449  ;  Clements  v.  Hood,  57  Ala.  450 ;  Comer  v.  Comer,  119  111.  170  ;  Weatherhead  r. 
Field,  26  Vt.  605  ;  Darden  v.  Harrill,  10  Lea,  421  ;  Higliarii  v.  Vanosdol,  125  Ind. 
74;  Law  v.  Smith,  2  R.  L  244;  Middleton  v.  Middleton,  31  la.  151  ;  Powell  v. 
Powell,  5  Dana,  168;  Ciinei'.  Jones,  111  111.  563;  Wallace  v.  Owen,  71  Ga.  544; 
Nolan  V.  Bolton,  25  Ga.  352 ;  Johnson  v.  Belden,  20  Conn.  322  ;  Woolery  v.  Wool- 
erv,  29  Ind.  249  ;  Clark  v.  Willson,  27  Md  693  ;  Parks  v.  Parks,  19  Md.  323  ;  Oiler 
V.  Bonebrake,  65  Pa.  St.  338 ;  Muriels  v.  FVanklin,  1  Swanst.  13  ;  Sidmouth  v.  Sid- 
mouth,  2  Beav.  447  ;  S.  C.  9  L.  J.  N.  S.  282 ;  Devoy  r.  Devoy,  3  Jur.  N.  S.  79 ;  26 
L.J  Ch.  290 ;  3  Sm.  &  G.  403 ;  Williams  r.  Williams  32  Beav.  370;  Dumper  v. 
Dumper,  8  Jur.  N.  S.  503;  S.  C.  6  L.  T.  N.  S.  315;  Fox  v.  Fox,  15  Ir.  Ch.  89; 
Stock  V.  McAvoy,  15  L.  R.  Eq  55;  S.  C.  42  L.  J.  Ch  2;s0;  21  W.  R.  520;  27  L, 
T.  441  ;  Fowkes  v.  Pascoe,  10  L.  R.  Ch.  3-13;  S.  C.  44  L.  J.  Ch.  367;  32  L.  T, 
545 ;  23  W.  R.  538 ;  Down  v.  Ellis,  35  Beav.  578 ;  Hoyes  v.  Kindersley,  2  Sm.  & 
G.  195. 


Evidence — Rebutting  Presumption.  575 

for  the  father.^  If  the  leading  intention  of  the  intestate  is 
equality  among  his  children,  what  would  bean  advancement, 
if  the  value  of  the  estate  would  produce  equality,  will  be  held 
a  debt  against  the  donee  in  order  to  produce  equality.^ 

581.  Contemporaneous  Declarations  and  Acts  of 
Donor. — When  the  transaction  rests  in  parol,  the  con- 
temporaneous declarations  and  acts  of  the  donor  are  always 
admissible,  no  matter  who  produces  them,  to  prove  either 
a  gift  or  advancement.  There  is  scarcely  any  other  way 
to  prove  the  character  of  the  transaction  ;  for  the  acts  and 
declarations  of  the  donor  show  his  intention,  and  this  in- 
tention is  the  heart  of  the  inquiry.  They  form  a  })art  of 
the  res  gestw.     There  are  many  cases  to  this  effect." 

582.  Contemporaneous  Declarations  and  Acts  of 
Donee. — So  likewise  declarations  and  acts  of  the  donee 
forming  a  part  of  the  res  gestae  are  admissible,  as  much  so 
as  those  of  the  donor.* 

1  Devoy  v.  Devoy,  3  Jur.  N.  S.  79  ;  S.  C.  20  L.  J.  Ch.  290 ;  3  Sm.  k  G.  403.  If  an 
article  is  loaned  by  a  father  to  his  child  it  shall  not  be  taken  as  an  advancement, 
unless  it  was  understood  that  it  was  not  to  be  returned :  Law  v.  Smith,  2  li.  I.  244. 

''■  Darden  v.  Harrill,  10  Lea,  421.  An  agreement  among  cliildren,  unknown  to 
the  father,  that  certain  sums  sliall  be  advancements  does  not  make  iliem  such  : 
Fitts  r.  Morse,  103  Mass.  164. 

3  Fennell  v.  Henry,  70  Ala.  484 ;  Merrill  r.  Rhodes,  37  Ala.  449 ;  Clements  r. 
Hood,  57  Ala.  459  ;  Autrey  v.  Autrey,  37  Ala.  614;  Middleton  c.  Middleton,  31 
la.  151;  Cline  ?'.  Jones,  111  111.  563;  Nolan  v.  Bolton,  25  <-ia.  352;  Duling  v. 
Johnson,  32  Ind.  155;  Woolery  v.  Woolery,  29  Ind.  249;  Joyce  r.  Hamilton,  111 
Ind.  163  (prior);  Oiler  r.  Bonebrake,  65  Pa.  St.  338;  Christy's  Appeal,  1  Grant 
(Pa.),  3G9;  Bruce  v.  Slerap,  82  Va.  352;  "Williams  ,•.  Williams,  15  Lea,  438 ; 
Steele  r.  Frierson,  85  Tenn.  430;  Mason  v.  H.-lmun  10  Lea,  315;  Harley  v. 
Harley,  57  Md.  340 ;  Batton  v.  Allen,  1  Hal.  Ch.  99 ;  Arnold  v.  Barrow,  2  P.  & 
H.  (Va.)  1  ;  Haverstock  r.  Sarbach,  1  W.  &  S.  390;  M'Dearraen  r.  Hodnett,  S3 
Va.  281 ;  Williams  r.  Williams,  32  Beav.  370;  Dumper  v.  Dumper,  8  .Tur  N.  S. 
503;  S.  C.  6  L.  T.  N.  S.  315;  Stock  v.  McAvoy,  15  L.  R.  Eq.  55  ;  S.  C.  42  I>.  J. 
Ch.  230 ;  21  W.  R.  520 ;  27  L.  T.  441  ;  Fowkes  r.  Pascoe,  10  L.  R.  Ch.  343  ;  S.  C. 
44  L.  J.  Ch.  367  ;  32  L.  T.  545 ;  23  W.  R.  538  ;  Turner  v.  Turner,  53  L.  T.  379 ; 
Middleton  v.  Middleton,  31  la.  151. 

*  Sidmonth  v.  Sidraouth.  2  Baav.  447  ;  Knabb's  Estate,  30  Leg.  Int.  361  ;  S.  C. 
1  Lesr.  Chron.  337. 


576  Advancements. 

583.  Prior  Declarations  of  Donor. — Declarations 
of  an  intestate  made  prior  to  the  time  of  the  gift  or  ad- 
vancement, showing  an  intention  to  make  one  or  the 
other,  are  admissible  for  the  purpose  of  proving  his  inten- 
tion, though  such  expressions  are  of  little  value,  unless 
they  show  a  long  and  fixed  determination  on  the  part  of 
the  donor,  and  are  continued  down  until  shortly  before 
making  the  gift/ 

584.  Subsequent  Declarations  of  Donor. — Subse- 
quent declarations  of  the  donor  to  third  persons  are  not 
admissible  to  prove  either  a  gift  or  an  advancement,  nor  to 
repel  the  presumption  of  an  advancement.  Thus  Avhere 
it  was  attempted  to  show  that  the  donor  subsecpiently  said 
that  the  property  turned  over  to  his  child  by  him  was  a 
o-ift  and  not  an  advancement  it  was  hekl  that  it  was  not 

o 

admissible,  although  it  was  sought  to  introduce  it  on  the 
ground  that  it  was  an  admission  by  him  against  his  in- 
terest. "  The  offered  declarations  were  made  several 
years  after  the  transaction,"  said  the  court,  "  and  were 
not,  in  any  sense,  part  of  the  acts.  They  were  too  re- 
mote in  point  of  time  to  be  considered  as  of  the  res  gestae, 
and  they  were,  therefore,  not  competent  upon  that  ground. 
Nor  do  we  think  they  are  competent  upon  the  ground  that 
they  were  declarations  against  the  interest  of  the  party 
by  whom  they  were  made,  inasmuch  as  so  far  as  his  in- 
terest was  concerned  it  was  immaterial  whether  the  trans- 
fer of  the  money  and  property  was  by  way  of  gift  or 
advancement,"  ^     The  rule  is  founded  in  wisdom  for  the 

'  Joyce  V.  Hamilton,  111  Ind.  163;  S.  C.  12  N.  E.  Rep.  294. 

^  Tliistlewaite  v.  Thistlewaite,  132  Ind.  355 ;  Harness  v.  Harness,  49  Ind.  384, 
overruling  Woolery  v.  Woo'ery,  29  Ind.  249,  and  Hamlyn  v.  Nesbit,  37  Ind. 
284;  Joyce  v.  Hamilton,  111  Ind.  163  ;  Hatch  ?;.  Straight.  3  Conn.  31 ;  Ray  d. 
Loper,  65  Mo.  470 ;  Nelson  v.  Nelson,  90  Mo.  460 ;  Sockwell  t.  Bateman,  1  South 
(N.  J.),  364;  Buchanan's  Estate,  2  Chester  (Pa.),  74;  Homiller's  Estate,  17  W. 
N.  C.  238  ;  O'Neal  v.  Breecheen,  5  Baxt.  604 ;  Mason  v.  Holmau,  10  Lea,  315 ; 


Evide7ice — Rebutting  Presumption.  577 

security  of  property  and  the  repose  of  titles,  for  otherwise 
the  character  of  such  a  transaction  would  at  any  time 
after  its  performance  be  subject  to  the  whim  or  caprice  of 
the  donor/  In  a  Missouri  case  it  was  said :  "  When  the 
j)arent  gives  property  to  the  child  he  may,  at  the  time, 
fix  upon  it,  what  value  he  pleases,  as  an  advancement,  or 
he  may  do  so  in  his  will — or  probably  by  a  memorandum 
charging  it  against  the  child  as  an  advancement,  but  his 
verbal  declarations,  that  he  had  given  property  to  a  child, 
made  to  third  persons,  are  not  evidence  of  the  fact.  That 
he  has  given  land  must  first  be  established  by  competent 
evidence,  and  then  the  law  presumes  it  to  have  been  by 
way  of  advancement,  but  to  permit  the  gift  to  be  estab- 
lished by  the  declarations  of  the  parent,  made  to  third 
persons,  is  to  enable  him  virtually  to  disinherit  one  of  his 
children,  without  making  a  last  will  and  testament."  ^ 

585.  Subsequent  Declarations  Admitted  in  Cer- 
tain Forums. — Notwithstanding  the  strong  array  of  au- 
thorities cited  in  the  foregoing  section  there  are  a  number 
of  cases  holding  that  the  subsequent  declarations  of  the 
donor  are  admissible,  not  only  to  show  that  the  transac- 
tion was  a  gift,  but  also  to  show  that  it  was  only  an  ad- 
vancement.^ 

Merriman  v.  Lacefield,  4  Heisk.  209 ;  Rains  v.  Havs,  2  Term  Ch.,  p.  672 ;  O'TJrien 
V)  Shell,  L.  R.  7  Ir.  Eq.  255  ;  Sldmoutli  v.  Sldmouth,  2  Beav.  447  ;  Nelson  v. 
Nelson,  90  Mo.  460. 

1  Harness  v.  Harness,  49  Ind.  384;  Duling  i'.  Johnson,  32  Ind.  155;  Sidmouth 
V.  Sidmouth,  2  Beav.  447 ;  Parks  v.  Parks.  19  Md.  323 ;  Cecil  v.  Cecil,  20  Md.  153. 

'Ray  V.  Loper,  65  Mo.  470;  Haverstock  v.  Sarbach,  1  W.  &  S.  390;  Levering 
r.  Ritteiihouse,  4  Whart.  130;  Porter  v.  Allen,  3  Barr,  390. 

■''  Watkins  v.  Young,  31  Gratt.  84;  Law  v.  Russell,  2  R.  I.  244  ;  M'Doaiman  r. 
Hodnett,  83  Va.  281.  In  this  last  case  the  court  seems  inclined  to  limit  them  to 
the  proof  of  a  gift,  on  the  ground  of  an  admi.ssion  :  Phillips  v.  Chappell,  16  Ga. 
16;  Wallace  y.  Owen,  71  Ga.  544  ;  Johnson  u.  Belden,  20  Conn.  322;  Clements 
V.  Hood,  57  Ala.  459. 

Of  course  dying  declarations  are  not  admis>^ible  as  siich  :  Middleton  v.  Middle- 
ton,  31  la.  151  ;  Duling  v.  Johnson,  32  Ind.  155. 
37 


578  Advancements. 

586.  Subsequent  Statements  of  Donor  to  Donee. 
— Statements  made  to  the  donee  by  the  donor  at  any 
time  are  held  admissible  in  some  of  the  cases,  either  in 
the  nature  of  admissions  on  the  part  of  the  donor,  or  even 
on  the  part  of  the  donee  when  not  contradicted.  If  the 
contest  is  whether  the  transaction  was  a  gift  or  an  ad- 
vancement, then  a  statement  made  on  the  part  of  the 
donor  to  the  donee  that  it  is  a  gift  is  taken  as  an  admis- 
sion ;  but  if  the  statement  is  that  it  is  only  an  advance- 
ment, and  the  donee  acquiesce  therein  or  does  not  contri- 
dict  it,  then  it  is  taken  as  an  admission  on  his  part  that 
he  is  subject  to  be  charged  with  the  amount  received  in 
the  distribution  of  the  donor's  estate.^ 

587.  Rationale  of  Doctrine  Concerning  Subse- 
quent Declarations. — It  seems  to  the  author  that  if 
clear  distinctions  are  borne  in  mind  there  need  be  no 
confusion  on  this  subject.  If  the  contest  is  between  the 
donor  or  his  personal  representative  and  donee  as  to 
whether  there  has  been  created  a  trust  on  the  one  hand, 
or  a  gift  or  advancement  on  the  other,  then  the  donor's 
subsequent  declarations  are  not  admissible  except  in  so 
far  as  they  support  the  claim  of  the  donee  that  there  was 
either  a  gift  or  advancement ;  ^  for  this  is  an  admission 
against  interest.  But  a  subsequent  statement  by  the  al- 
leged donor  that  the  transaction  was  only  a  trust  would 
not  be  admissible,  because  that  is  not  an  admission  against 
interest  but  a  self-serving  assertion  of  it.  Where,  how- 
ever, the  contest  is  after  the  donor's  death,  and  is  between 

^Phillips  V.  Chappell,  16  Ga.  16;  Nelson  v.  Nelson,  90  Mo.  460;  Prince  r. 
Slemp,  82  Va.  352  ;  Fox  v.  Fox,  15  Jr.  Ch.  89  (father  reproved  son  for  interfer- 
ing with  subject-matter  of  gift)  ;  Clements  t".  Hood,  57  Ala.  459;  Autrey  v.  Au- 
trey,  H7  Ala.  614. 

2  West  V.  Bolton,  23  Ga.  531  ;  Murray's  Estate,  2  Chest.  (Pa.)  300  ;  Beresford  v. 
Crawford,  51  Ga.  20. 


Eh'idence — Rebatt'uiy  Presumption.  o79 

the  claim  on  the  one  side  that  it  is  an  advancement  and 
on  the  other  that  it  is  a  gift,  then  the  subsequent  declara- 
tions of  the  donor  that  it  was  an  advancement  and  not  a 
gift  are  not  admissible.  For  then  his  declarations  cannot 
be  said  to  be  against  his  interest.  He  has  parted  with  all 
interest  in  the  property,  whether  the  transaction  was 
either  a  gift  or  an  advancement.  So  far  as  his  interest  is 
concerned  it  is  immaterial  whether  the  transfer  was  by 
way  of  gift  or  advancement.^ 

588.  Contemporaneous  Acts  and  Declarations. — 
Acts  and  declarations  of  the  donor  that  are  contemporary 
with  the  transaction  give  effect  and  color  to  it,  and  are 
always  admissible  to  show  whether  a  gift  or  advancement 
was  intended.  So  too  the  acts  and  declarations  of  the 
donee  are  admissible.  These  all  form  a  part  of  the  res 
gestae} 

'  Thistlewaite  v.  Thistlewaite,  132  Tnd.  355, 

2  Williams  v.  Williams,  15  Lea,  43S ;  Sidmoutli  v.  Sidraouth,  2  Beav.,  p. 
455. 

In  an  early  case  the  following  facts  were  proved  :  "  The  evidence  to  prove  this 
purchase  in  the  name  of  the  son  to  be  a  trust  for  the  father  consists  of,  Fir&i, 
Deeds:  1.  Father  possessed  the  money;  2.  Received  the  prolits  for  twenty 
years;  3.  Made  leases;  4.  Took  fines;  5.  Inclosed  part  in  a  park;  G.  Built  much  ; 
7.  Provided  materials  for  more;  8.  Directed  Lord  Chief  Justice  North  to  draw  a 
settlement;  9.  Treated  about  the  sale  of  it.  Secondly,  Vi" or il^:  1.  Thomas  Grey 
confessed  the  truth;  2.  Advised  his  father  to  sell,  and  buy  York  House;  3.  'If 
it  was  mine,'  says  he,  '  I  would  sell  it ;'  4.  Before  he  made  his  will,  said  it  wan 
his  father's  ;  5.  After  he  made  his  will,  said  it  was  to  keep  his  brother  from  pre- 
tending. The  disproof  of  the  trust  stands  upon  the  like  evidence,  Deeds  and 
Words.  FtVs^,  Deeds:  For  Thomas  Orey  bound  with  Lord  William  for  £7,000 
of  the  purchase-money.  Secomil;/,  Words  of  Lord  William.  1.  Before  the  pur- 
chase, said  he  would  buy  it  for  his  son  ;  2.  After  tiie  purchase, said  he  had  liought 
it  for  his  son;  3.  The  now  purchased  hind  mine,  but  Gosfield  my  son's,  T.  CJ. ; 
4.  Gosfield  was  the  inheritance  of  n)7  son's  mother,  henre  would  better  have 
bought  Hatton  Garden.  I  have  no  title  but  my  son's  will,  it  being  the  purcha.«e 
of  my  son,  T.  G.  Thirdly,  Words  of  Thomas  Grey  :  1.  I  believe  my  father  will 
give  me  all,  but  Gosfield  is  mine  already  ;  2.  Thomas  Grey,  when  he  lay  dyin^, 
excused  it  to  his  brother  Ralph,  that  he  had  by  his  will  given  Gosfield  to  his 
father :"  Grey  v.  Grey,  2  Swanst.  594. 


580  Advancements. 

589.  Admission  of  Donee. — The  admissions  or  state- 
ments of  the  donee  that  the  transaction  was  an  advance- 
ment are  always  admissible  as  an  admission  or  statement 
against  interest.  Even  the  admissions  ^  of  a  married 
woman  are  admissible.^  Of  course  such  admissions  are 
not  evidence  in  favor  of  the  donee.^ 

590.  Conduct  of  Parties  with  Keference  to 
Subject-Matter  of  Gift. — When  the  controversy  is 
between  the  alleged  donor  and  donee,  the  one  claiming 
that  the  transaction  created  a  trust  and  the  other  an  abso- 
lute gift,  then  the  conduct  of  the  parties  (at  least  before 
any  controversy  arose)  with  reference  to  the  property  in 
controversy  is  admissible  to  prove  or  disprove  tlie  claim 
of  either.  This  is  upon  the  ground  that  the  acts  of  the 
person  in  possession  of  property  is  always  admissible  to 
explain  such  possession  ;  for  actual  and  visible  possession 
usually  raises  the  presumption,  unless  explained  or  quali- 
fied by  the  evidence,  of  an  absolute  ownership  in  the  pos- 
sessor. 

591.  Donor's  Declarations  Concerning  Other 
Gifts  Made  By  Him. — The  general  rule  is  that  decla- 
rations of  a  donor  concerning  other  gifts  he  has  made  can- 
not be  shown  ;  but  his  prior  and  contemporaneous  decla- 
rations made  with  reference  to  such  other  gifts,  though 
the  character  of  them  is  not  directly  in  issue,  may  l)e 

1  Green  v.  Hathaway,  36  N.  J.  Eq.  471  ;  Williard  v.  Williard,  56  Pa.  St.  119; 
Murray's  Estate,  2  Chest.  (Pa.  )  300. 

^  Clements  r.  Hood,  57  Ala.  459. 

'  Admissions  made  by  a  donee  under  mistake  may  be  explained :  Chapman  v. 
Allen,  56  Conn.  152. 

Where  grandchildren  claimed  a  distributive  share  of  their  grandfather's  estate, 
in  right  of  their  deceased  mother,  the  admisi^ions  of  their  father,  that  he  had  re- 
ceived advancements  on  her  account,  made  after  the  grandfather's  death,  were 
held  not  to  be  evidence  against  the  grandchildren,  for  they  did  not  claim  through 
the  father :  Nelson  v.  Bush,  9  Dana,  104. 


Evidence — Rebutting  Presumption.  581 

admissible  when  they  tend  to  show  the  donor's  fixed  and 
general  policy  in  reference  to  gifts  to  his  children.  Thus 
where  it  was  sought  to  prove  that  the  donor  at  the  time, 
and  prior  thereto,  executed  certain  deeds  and  declared 
that  the  property  described  therein  was  given  to  the 
grantees  named  as  separate  and  independent  gifts,  and 
not  as  advancements ;  that  he  intended  his  sons,  the 
grantees,  to  have  the  lands  conveyed  independent  of  their 
distributive  shares  in  his  estate ;  that  the  negroes  which 
he  had  given  to  each  of  his  children,  including  the  plain- 
tiffs as  well  as  the  defendants,  were  separate  and  indepen- 
dent gifts,  and  not  intended  by  him  as  advancements  ;  and 
that  he  intended  his  sons  to  have  the  lands  conveyed  more 
than  his  daughters,  it  was  held  that  the  evidence  was  ad- 
missible as  tending  to  show  a  general  and  fixed  policy  of 
the  donor.^ 

592.  Memorandum  Made  by  Doxor. — Memoranda 
made  by  the  donor  contemporaneous  with,  or  even  before, 
the  gift  stand  upon  the  same  footing  with  the  donor's 
declarations,  and  are  admissible  to  prove  the  character  of 
the  transaction.^  Bat  a  mere  account  kept  by  the  donor 
in  his  usual  account-books,  show^ing  the  donor  as  creditor 
and  the  donee  as  debtor,  for  certain  property  received  by 
the  latter  at  a  certain  price  named,  or  the  receipt  of  a  cer- 
tain sum  of  money  by  the  latter,  is  not  sufiicient  to  estab- 
lish either  a  gift  or  an  advancement ;  but,  on  the  con- 

^  Merrill  v.  Rhodes,  37  Ala.  449.  As  a  rule,  declarations  concerning  other  gifts 
are  not  admissible:  Sanford  v.  Sanford,  61  Barb.  293;  Murless  v.  Franklin,  1 
Swanst.  13. 

2  Law  V.  Smith,  2  R.  I.  244  ;  Culkeley  v.  Noble,  2  Pick.  337  ;  Pole  v.  Simmons, 
46  Md.  246  ;  Harlwell  v.  Rice,  1  Gray,  587  ;  Nelson  v.  Nelson,  90  Mo.  460;  Eis- 
ner V.  Koehler,  1  Dem.  277 ;  Fels  v.  Fels.  1  Ohio  C.  C  420 ;  Hengst's  Estate,  (J 
Watts,  86  ;  Oiler  v.  Bonebrake,  65  Pa.  St.  338  ;  Whitman's  Appeal,  2  Grant  (Pa.  i, 
323  ;  Hoak  v.  Hoak,  5  Watts,  80  ;  Thompson's  Appeal,  42  Pa.  St.  345  ;  Gillespie 
V.  Piatt,  6  Phila.  485. 


582  Advancements. 

trary,  shows  a  mere  business  transaction — a  debt  owed  by 
the  donee  to  the  donor,  and  is  a  circumstance  against  the 
claim  of  an  advancement/  If  the  account  is  kept  in 
what  is  often  termed  a  "  family  book,"  reciting  that  the 
charges  are  for  moneys  or  property  advanced  to  the 
person  charged,  then  the  presumption  that  the  account 
shows  a  debt  is  rebutted.^  The  account  must,  how- 
ever, be  entered  at  the  time  the  advancement  is  made ; 
and  if  it  is  entered  at  a  subsequent  period,  it  is  not  enti- 
tied  to  go  in  evidence  any  more  than  subsequent  declara- 
tions made  by  the  donor.  In  this  respect  there  is  no  dif- 
ference between  subsequent  declarations  and  subsequent 
entries.^  AVhere  a  parent  makes  a  charge  against  a  child 
for  money  paid  it,  and  afterward  expunges  the  account, 
this  is  evidence  of  a  gift  and  not  an  advancement.'*  If 
the  parent  declare  at  the  time  he  erases  the  account  that 
he  intends  the  property  or  money  an  advancement,  his 
conduct  is  for  the  jury  to  consider.^  Where  a  father  fur- 
nished his  married  daughter  articles  of  household  furni- 
ture to  an  amount  over  $500,  and  entered  them  on  his 
account-book,  declaring  at  the  time  that  he  did  not  do 
this  for  the  purpose  of  making  a  charge,  but  for  his  own 
gratification ;  and  he  afterward  expunged  the  entry  thus 

1  Clark  V.  Warner,  6  Conn.  355;  White  v.  Moore,  23  S.  C.  456;  Fels  v.  Fels,  1 
Ohio  C.  C.  420;  Miller's  Appeal,  40  Pa.  St.  57;  Harris's  Appeal,  2  Grant  (Pa.), 
304  ;  Bulkeley  v.  Noble,  2  Pick.  337  ;  Hartwell  v.  Kice,  1  Gray,  587  ;  Ashley's  Case, 
4  Pick.  21. 

^Mengel's  Appeal,  116  Pa.  St.  292;  Brown  v.  Brown,  16  Vt.  197;  Weatherhead 
V.  Field,  26  Vt.  665  ;  Murray's  Estate,  2  Chest.  (Pa.)  300. 

3 Nelson  v.  Nelson,  90  Mo.  460;  Fellows  v.  Little,  46  N.  H.  27.  Of  course  the 
donor  cannot  chanjre  the  effect  of  a  transaction  by  changing  a  c  inteniporaneous 
entry  into  one  of  a  different  effect:  O'Brien  v.  Shell,  L.  E.  7  Ir.  Eq.  255. 

If  money  is  lent  or  paid  by  the  father  to  or  for  a  son,  at  the  request  of  the  lat- 
ter, and  an  account  is  stated  by  the  father  and  interest  charged,  such  loan  or  pay- 
ment is  a  debt  and  not  an  advancement:  Harris's  Appeal,  2  Grant  (Pa.),  304. 

*  Murray's  Estiite,  2  Chest.  (Pa.)  300. 

^Wallace  v.  Owen,  71  Ga.  544. 


Evidence — Rebutting  Presumption.  583 

made,  it  was  held  that  there  was  not  sufficient  proof  to 
show  an  advancement.^  In  cases  of  book-accounts,  charges, 
and  memoranda,  jDarol  evidence  is  always  admissible,  unless 
a  positive  statute  intervenes,  to  show  the  actual  intention 
of  the  donor.^ 

593.  Will  Eefeeeing  to  Account  to  Show  Ad- 
vancements Made. — It  is  a  very  common  occurrence  for 
a  testator  to  declare  in  his  will  that  any  child  advanced 
as  shown  by  his  books  shall  be  charged  with  the  amount 

'Johnson  v.  Belden,  20  Conn.  322.  In  this  case  it  was  also  held  that  the  mere 
relationsliip  of  parent  :ind  child  is  not  sufficient  to  decide  a  question  of  an  ad- 
vancement; nor  that  the  mere  fiict  that  a  parent  h.is  delivered  chattels  or  ad- 
vanced money  to  or  for  a  child;  nor  the  equality  of  patrimonial  estate,  for  in 
families  a  judicial  discrimination  is  equitable.  In  the  distribution  of  an  intes- 
tate's estate,  a  memorandum,  kept  by  tlie  parent,  of  his  advancements  to  his 
children,  indicating  a  scheme  of  distribution  of  specific  articles  in  kind,  is  only- 
evidence  of  tiie  fact  of  the  advancements,  etc.,  prima  facie  of  their  value,  and  its 
indications  of  the  intestate's  scheme  for  the  distribution  of  his  estate,  cannot  be 
used  as  a  will  unless  properly  attested :  Sims  v.  Sims,  39  Ga.  108. 

"^  Mitchell  V.  Mitchell,  8  Ala.  414.  Thus  a  father  kept  an  account,  in  this  case, 
with  his  own  son,  upon  his  books,  which  was  added  up,  and  at  the  foot  was  writ- 
ten by  the  father,  "accounted  for,  as  so  much  that  he  has  had  of  my  estate;  if  it 
is  over  his  portion,  he  must  pay  back  to  them."  No  question  having  been  made 
of  this  as  a  testamentary  paper  it  was  held  competent  to  explain  the  nature  of 
the  items,  and  to  detail  a  conversation  his  wife  had  with  him  in  relation  to  it,  to 
show  that  the  account  was  not  a  debt  due  from  the  son  as  an  advancement. 

Where  the  application  to  open  a  decree  that  an  intestate  made  no  advance- 
ments to  any  of  his  children,  was  based  upon  newly  discovered  "memorandum 
of  donations"  to  his  children,  in  his  handwriting  and  dated  twenty-five  years 
before  his  death,  but  to  which  he  had  never  called  the  attention  of  any  of  his 
family,  the  bill  was  dismissed  :  Langtbrd  v.  Nahers,  86  Ga.  449. 

That  declarations  contemporaneous  with  book  entries  may  be  explained  by 
evidence:  see  Oiler  v.  Bonebrake,  65  Pa.  St.  .'^38. 

Wliere  entries  or  charges  on  the  books  of  a  decensed  parent  of  property  de- 
livered to  his  children  are  made  in  such  a  manner  and  under  such  circumstances 
as  reasonably  to  exclude  the  idea  of  a  debt  or  present  gift,  they  become  evidence 
that  they  were  intended  .as  an  advancement:  Fellows  r.  Little,  46  N.  11.27; 
Tliompson's  Appeal,  42  Pa.  St.  345;  Gillespie  v.  Piatt,  6  Phila.  485;  Albert  i-. 
Albert,  74  Md.  52G. 

A  mere  entry  that  the  donor  had  made  an  advancement  to  a  designated  child 
does  not  make  an  advancement  if  none  in  fact  was  made:  Alleman  v.  Manning, 
44  Mo.  App.  4,  9. 


584  Advancements. 

therein  stated.  Thus  a  testator  declared  in  his  will  that 
each  of  his  children  were  "  to  be  charged  in  the  distribu- 
tion [of  my  estate]  with  what  I  have  given  them,  or  shall 
have  given  them  at  the  time  of  my  death,  and  with  which 
I  have  charged  them  in  my  book  and  in  my  foregoing 
will."  Upon  an  issue  to  try  the  truth  and  validity  of 
certain  alleged  entries  of  advancements  parol  testimony 
was  admitted  to  show  that  the  entries  were  not  advance- 
ments, and  that  it  was  competent  to  ask  a  witness  who 
had  made  them  in  the  testator's  book  whether  the  sum 
charged  therein  against  some  of  the  children  had  been 
actually  advanced.  Proof  of  the  testator's  admissions  that 
the  charges  were  excessive  was  also  admitted.^  A  testa- 
trix by  her  will  gave  her  own  property,  and  apportioned 
other  property  by  virtue  of  a  power  in  her  deceased  hus- 
band's will,  equally  among  her  children,  directing  that  no 
child  should  be  charged  with  any  money  advanced  on  its 
account,  unless  the  same  was  charged  in  a  memorandum 
filed  with  her  will.  She  acquitted  each  of  her  children 
from  all  debts  due  her  or  her  husband's  estate,  unless 
charged  in  such  memorandum.  After  making  this  will 
she  gave  one  of  her  daughters  a  sum  of  money  who 
signed  a  receipt  therefor  stating  that  the  sum  was  to  be 
deducted  from  out  of  the  estate  of  her  father's  which  was 
coming  to  her.  This  receipt  was  deposited  by  the  busi- 
ness asrent  of  the  testatrix  in  a  trunk  devoted  exclusivelv 
to  papers  concerning  the  testatrix  (including  her  will) 
and  her  husband's  estate,  but  was  not  otherwise  connected 
with  the  will.  It  was  attempted  to  charge  this  sum  of 
money  to  this  daughter,  as  an  advancement,  but  the  court 
decided  that  the  receipt  was  not  such  a  memorandum  as 
was  contemplated  by  the  will,  and  the  sum  advanced 
could  not  be  deducted  from  the  daughter's  share.^ 

»  Hoak  1-.  Hoak,  5  Watts,  80. 

"Loiing  V.  Blake,  106  Mass.  592.  See,  also,  Paine  r.  Tarsons,  MPick.  318.  For 


Evidence — Rehuttiny  Presumpiion.  58o 

594.  Statute  Making  Book-Entry  Sole  Eeposi- 
TOEY  OF  Donor's  Intention. — Statutes  in  a  few  States 
make  the  entry  in  the  books  of  the  donor  or  the  do- 
nee's receipt  the  sole  repository  of  the  donor's  intention, 
and  exclude  all  parol  evidence  of  that  intention.  Thus  a 
statute  provided  that  "  all  gifts  and  grants  shall  be  deemed 
to  have  been  made  in  advancement,  if  they  are  expressed 
in  the  gift  or  grant  to  be  so  made,  or  if  charged  in  writing 
by  the  intestate  as  an  advancement,  or  acknowledged  in 
writing  as  such  by  the  child  or  other  descendant."  The 
donee  and  her  husband  signed  a  receipt,  as  follows:  "Re- 
ceived of  J.  S.  $500,  it  being  a  part  of  my  wife's  portion." 
This  receipt  was  found  among  the  papers  of  the  donor  at 
his  death,  and  was  deemed  sufficient  proof  of  the  advance- 
ment. So  an  acknowledgment  by  a  husband,  whose  wife 
was  insane,  of  a  gift  from  her  father  for  her  support,  "  as 
a  part  of  her  portion  out  of  her  father's  estate,"  preserved 
by  the  father  in  a  bundle  of  letters  relating  to  her  sui3- 

an  instance  where  the  account  was  proved  in  an  insolvencj'  count,  see  Bigelow  r. 
Poole,  10  Grey,  104.  If  a  will  provide  that  the  devisees  shall  be  chargeable  with 
"any  book  acL'ounts  wliicli  may  stand  cliarged  in  my  books "  against  them,  en- 
tries made  tliereafter  of  amounts  received  by  the  devisees  maybe  used  in  evi- 
dence in  determining  the  amount  of  the  advancements:  Whitman's  Appeal,  2 
Grant  (Pa.),  323. 

By  a  paper  a  testatrix  gave  certain  sums  of  money  to  her  children  therein 
named,  and  declared  that  the  sums  thereby  given  were  "  absolute  gifts  ;  and  in 
any  distribution  to  be  made  at  my  death  of  my  real  and  personal  estate,  in  case  I 
should  die  intestate,  must  be  taken  and  considered  as  absolute  gifts  and  not  advance- 
ments, and  must  not  be  abated  or  deducted  out  of  tlie  shares  of  my  respective 
children  above  mentioned  in  the  distribution  of  my  real  and  personal  estate." 
After  the  execution  of  this  paper  she  gave  certain  sums  of  money  to  sevend  of 
her  children  as  advancements;  and  then  made  another  will  disposing  of  her 
property,  and  directed  that  all  her  children  should  be  charged  interest  on  all 
money  advanced  to  them  from  the  time  they  received  it  up  to  the  time  of  her 
death  in  order  that  they  all  may  be  equal  It  was  held  that  the  paper  executed 
before  the  execution  of  the  will  showed  an  intent  to  make  an  absolute  gift  and 
not  an  advancement ;  and  that  a  memorandum  of  calculations  made  by  her  be- 
fore executing  the  papers  were  admissible  to  show  her  intention :  Pole  v.  Simmons, 
45  Md.  246. 


'386  Advancements. 

port  at  an  asylum  for  the  insane,  was  deemed  to  satisfy 
the  statute.  But  the  production  of  a  book  of  accounts, 
kept  by  the  deceased,  with  three  leaves  cut  out,  together 
with  evidence  of  his  declarations  that  he  had  made 
charges  in  his  books  as  advancements  to  his  children, 
was  held  not  to  be  competent  evidence  of  such  advance- 
ments, for  the  reason  that  the  statute  required  evidence  of 
adv^ancements  to  be  in  writing,  and  there  was  no  evidence 
that  these  three  missing  leaves  contained  an  entry  of  the 
advancements  claimed.^ 

595.  Statute  Requiring  Advancement  to  be  in 
Writing. — In  some  States  statutes  require  the  gift  to  be 
expressed  in  writing  as  an  advancement  before  it  can  be 
deemed  an  advancement.  Thus  in  Illinois  a  statute  provided 
that  "  no  gift  or  grant  shall  be  deemed  to  have  been  made 
in  advancement,  unless  so  expressed  in  writing  by  the  in- 
testate as  an  advancement,  or  acknowledged  in  writing 
by  the  child  or  other  descendant."  A  donor  conveyed 
land  to  the  donee  without  using  any  expression  in  the 
deed  that  the  conveyance  was  by  way  of  advancement ; 
and  it  was  held  that  the  transaction  could  not  be  taken  as 
an  advancement  however  clear  the  donor's  intention  ap- 
peared to  make  it  such.^  Consequently,  parol  evidence 
is  not  admissible  in  that  State  to  show  an  advancement.^ 
A  father  in  that  State,  for  the  expressed  consideration  of 
one  dollar  and  love  and  affection,  conveyed  to  his  daugh- 
ter a  lot  worth  $1,000  ;  and  also  for  a  like  consideration 

^Hartwell  v.  Rice,  1  Gray,  587.  The  words,  "Articles  that  I  let  my  daughter 
N.  have,"  in  a  book  containing  memoranda  made  by  a  parent  of  advancements  to 
his  other  children  is  a  sufficient  compliance  with  the  s;atute,  and  parol  evidence  is 
not  admissible  to  control  or  vary  it :  Bulkeley  v.  Noble,  2  Pick.  337. 

2  Long?'.  Long,  118  111.  638;  Wallaces.  Reddick,  119  Til.  151;  Wilkinson  r. 
Thomas,  128  111.  363;  Comer  v.  Comer,  119  111.  170;  Filman  t-.  Filman,  15  Gr. 
Ch.  643. 

'  Wilkinson  v.  Thomas,  supra. 


Evidence — Rebutting  Presuinpiion.  587 

two  eighty-acre  tracts  of  land  to  his  two  sons.  Ten  years 
later  he  executed  his  will,  which  was  not  j^robated  on  ac- 
count of  a  subsequent  marriage,  in  and  by  which  he 
devised  to  his  daughter  $5,  and  recited :  "  She  having 
heretofore  received  the  sum  of  $1,000  in  real  estate.  .  .  . 
My  several  sons  all  had  land  and  other  property  to  the 
value  of  at  least  i|2,000."  The  court  held  that  the  words 
used  in  the  will  were  not  sufficient  to  afford  evidence  of 
an  advancement  to  the  daughter  and  sons.^  So  where  a 
child  gave  its  father  a  receipt  for  articles  delivered  to  it, 
promising  to  return  them  if  called  for,  and  the  parent 
wrote  underneath  that  they  were  not  to  be  exacted,  but 
were  to  answer  as  a  part  of  the  child's  portion,  it  was  held 
to  be  an  advancement,  which  could  not  be  varied  by 
parol.^  Nor  can  it  be  shown  that  a  note  given  by  a  child 
to  his  father  was  not  to  be  paid  but  taken  as  an  advance- 
ment.^ 

^  Wilkinson  v.  Tliomas,  supra. 

2  Bulkeley  v.  Noble,  2  Pick.  337. 

^  Barton  v.  Rice,  22  Pick.  508.  A  statute  of  this  character  may  apply  to  ad- 
vancements made  before  its  passage  where  the  death  of  the  intestate  occurs  after 
such  passages :  Clarke  v.  Clarke,  17  B.  Mon.  698. 

A  statute  provided  tiiat  "A  raemoranthini  of  advancements,  in  the  handwrit- 
ing of  the  parent,  or  subscribed  by  him,  shall  be  evidence  of  the  fact  of  advance- 
ment, but  shall  not  be  conclu-ive  as  to  tlie  valuation  of  the  i)roperty,  unless  in- 
serted as  part  of  testator's  will  or  referred  to  therein."  It  was  held  that  this 
statute  did  not  exclude  evidence  of  the  declarations  of  the  intestate  that  notes  on 
a  son  were  held  as  advancements  and  not  debts:  Bransford  r.  Crawford,  51  Ga.  20  ; 
West  V.  Bolton,  23  Ga.  531  ;  Sims  v.  Sims,  39  Ga.  108.  In  Rhode  Island  a  statute 
provided  that  "  If  real  estate  shall  be  conveyed  by  deed  of  girt,  or  personal  estate 
shall  be  delivered  to  a  child  or  grandchil.l  and  charged,  as  a  memorandum  made 
thereof  in  writing  by  the  intestate,  or  by  iiis  order,  or  siiall  be  delivered  ex- 
pressly for  the  purpose  in  the  presence  of  two  witnesses,  who  are  requested  to  take 
notice  thereof,  the  same  shall  be  deemed  an  advancement  to  such  ciiild,  to  the 
value  of  such  real  or  personal  estate."  It  was  lieM  that  this  did  not  exclude 
other  and  higlier  proof  of  an  advancement  than  is  therein  designated,  but  only 
inferior  proof;  but  it  was  also  held  that  parol  declarations,  witir  ut  evidence  of  a 
written  memorandum,  was  not  sufficient  to  sliow  an  advancement:  Law  v.  Smith, 
2  R.  I.  244. 

In  Massachusetts  the  statute  of  1805  prescribed  what  should  be  evidence  of  an 


588  Advancements. 

596.  Parol  Evidence  to  Show  Consideration  of 
Deed. — In  the  case  of  a  conveyance  by  a  parent  to  a 
cliild  the  Supreme  Court  of  Virginia  said,  speaking  with 
reference  to  evidence  to  show  the  true  consideration  of  a 
deed  :  "  Ordinarily  parol  evidence  is  not  admissible  to 
add  to,  vary,  or  contradict  a  written  statement.  We  do 
not  think,  said  Cochran,  J.,  in  Parks  v.  Parks,^  that  rule 
can  operate  to  exclude  such  evidence  when  offered  to 
show  the  particular  character  of  the  subject-matter  of  a 
deed  collaterally  adduced  to  support  or  oppose  as  a  con- 
troverted right  to  other  property  than  that  described  by 
the  deed.  It  is  a  settled  matter  that  written  instruments 
are  to  be  interpreted  according  to  their  subject-matter, 
and  that  parol  evidence  may  be  iutroduced  to  ascertain 
the  qualities  and  nature  of  the  subject  to  which  the  in- 
strument refers.  If  a  deed  may  be  construed  by  the  aid 
of  parol  evidence  of  the  nature  and  qualities  of  the  prop- 
erty conveyed,  there  certainly  can  be  no  objection  to  the 
admission  of  such  evidence  to  show  the  character  of  the 
property  in  a  case  where  the  construction  of  the  deed  is 
not  involved.  The  question  presented  on  the  evidence 
objected  to  is  not  one  of  construction  of  the  bond  and 
lease,  nor  does  it  arise  between  the  parties  thereto,  nor 
can  the  determination  of  it  either  way  affect  or  change 
their  rights  or  obligations  as  they  stand  upon  these  in- 
struments ;  but  it  is  as  to  the  peculiar  nature  and  prop- 
erties of  the  estate  conveyed,  in  respect  to  which  these 
papers  are  silent ;  or,  in  other  words,  whether  that  estate 

aJvancement  to  a  child  or  grandchild,  and  repealed  all  prior  acts  falling  within 
its  purview;  but  it  was  held  that  a  deed  made  prior  to  that  statute  and  which  by 
the  existing  laws  would  have  been  evidence  of  an  advancement  should  have  that 
effect,  the  repealing  clause  notwithstanding,  although  the  grantor  died  after  the 
statute  of  1805  was  in  operation  :  Whitman  v.  Hapgood,  10  Mass.  437  ;  Eemis  v. 
Stearns,  16  Mass.  200. 
'  19  Md.  323. 


Evidence — Rebutting  Presumption.  589 

as  conveyed  takes  the  character  and  legal  properties 
of  an  advancement,  or  those  of  a  full  and  absolute  gift, 
without  a  view  to  a  portion  or  settlement.  The  nature  of 
the  estate  in  these  respects  follows  the  intention  of  the 
donor,  and  that  intention,  as  we  understand  the  authori- 
ties, may  be  ascertained  by  parol  evidence  of  the  donor's 
declarations  at  the  time  of  executing  the  conveyance,  or 
of  the  donee's  admissions  afterward,  or  by  proof  of  facts 
and  circumstances  from  which  the  intention  may  be  in- 
ferred. In  the  absence  of  such  evidence,  and  of  any- 
thing in  the  deed  to  indicate  the  intended  character  of 
the  property  conveyed,  the  law,  looking  to  the  equal  re- 
lationship and  right  of  other  distributees,  will  presume 
the  character  most  favorable  to  equal  distribution  to  have 
been  intended  by  the  donor.  In  this  case  there  is  no 
effort  to  defeat  or  impede  the  title  of  the  grantee  to  the 
land  conveyed  him ;  there  is  no  question  of  construction 
of  the  deed ;  there  is  no  question  between  him  and  his 
grantor ;  the  deed  is  not  only  not  assailed,  but  is  ad- 
mitted in  all  its  force,  and  there  is  no  effort  made  to  disturl) 
him  in  the  possession  and  enjoyment,  to  the  fullest  ex- 
tent, of  the  property  conveyed  therein.  But  when  he 
comes  in  to  claim  for  his  wife  an  equal  share  in  the  par- 
tition of  the  other  lands  of  his  wife's  father,  the  other  ten 
children  or  their  descendants  deny  his  right  to  share 
further  in  the  estate  of  the  intestate,  upon  the  ground  that 
he  has  already  received,  in  the  lifetime  of  the  intestate, 
a  larger  share  than  can  M\  to  any  other  child.  He  ex- 
hibits his  deed  as  evidence  that  he  paid  $2,000  for  this 
land.  It  is  well  known  on  all  sides,  and  admitted  by 
him,  that  he  never  paid  anything  for  the  land  (except  a 
conveyance  in  Kentucky  of  a  few  acres  of  land  which  he 
has  been  allowed  for),  but  he  contends  that  parol  evidence 
cannot  be  invoked  to  show  what  the  true  consideration 


500  -  Advancements. 

was,  and  what  was  the  real  intention  of  the  grantor  as  to 
the  said  conveyance.  Neither  his  deed  nor  his  title 
thereunder  is  questioned ;  but  the  question  is,  whether, 
when  this  deed  was  made,  with  whatever  estate  or  title  it 
conveyed,  was  it  intended  by  the  grantor  as  an  advance- 
ment? That  parol  evidence  may  be  so  admitted  aud 
used  is  undoubtedly  the  rule.  As  has  been  said  often  by 
the  courts,  the  exclusion  of  this  extrinsic  evidence  to  show 
the  true  design  of  the  grantor  would  tend  to  defeat  the 
provisions  of  our  laws  for  i\\Q  equal  distribution  of  the  in- 
testate's estate  ;  for  the  introduction  of  proof  for  this 
purpose  does  not  contravene  the  general  rule  of  evidence 
excluding  parol  proof  to  explain  or  vary  the  terms  of  a 
written  contract.  The  object  being  collateral  to  effect  the 
title  to  other  property  evidence  can  be  gone  into  to  show 
its  true  character  and  design."  ^ 

'  Bruce  v.  Slemp,  82  Va.  352.  These  propositions  are  supported  bv  many  cases : 
Maxwell  v.  Maxwell,  109  III.  588  ;  Hall  v.  Hall,  107  Mo.  101  ;  S.  C.  17  S.  W.  Rep. 
811;  Kingsbury's  Appeal,  44  Pa.  St.  460 ;  Mutual  Fire  Ins.  Co.  v.  Ded,  18  Md. 
26;  Palmer  v.  Culbertson,  20  N.  Y.  Supp.  391 ;  McCIanalian  v.  McCIanahan,  14 
S.  E.  Rep.  419  ;  Gordon  v.  Gordon,  1  Met.  285 ;  Powell  v.  Powell,  5  Dana,  168  ; 
Clark  V.  Willson,  27  Md.  693  ;  Parks  v.  Parks,  19  Md.  323 ;  Aden  v.  Aden,  16  Lea, 
453;  Lott  v.  Kaiser,  61  Tex.  665  ;  Lench  v.  Lench,  10  Ves.  511 ;  Conyers  v.  Welt- 
man,  14  N.  H.  287;  Stewart  v.  I'attison,  8  Gill,  46;  Wilson  v.  Beauciianip,  44 
Miss.  556;  Murrel  v.  Murrel,  2  Strobh.  Eq.  148;  Hattersley  r.  Bassett,  25  Atl. 
Rep.  332  ;  Wilks  v.  Greer,  14  Ala.  437. 

If  the  consideration  stated  is  merely  nominal,  the  presumption  is  that  the  trans- 
action was  an  advancement:  Harper  v.  Harper,  92  N.  C.  300;  Hatch  v.  Straight, 
3  Conn.  31 ;  McCIanahan  v.  McCIanahan,  14  S.  E.  Rep.  419. 

In  some  of  the  States  statutes  requiie  the  fact  of  advancement  to  be  stated  in 
tlie  deed,  and  a  failure  to  make  such  a  statement  will  not  admit  of  parol  evidence 
to  show  that  the  conveyance  was  in  fact  an  advancement:  Adams  w.  Adams,  22 
Vt.  50;  Newell  v.  Newell,  13  Vt.  24. 

In  such  instances  the  intention  of  the  grantor  must  be  gathered  from  the  fate 
of  the  papers  :  Weatherhead  v.  Field,  26  Vt.  665.  Wliere  a  statute  required  an 
advancement  to  be  evidenced  by  a  writing,  a  recitation  in  a  deed  that  the  consid- 
eration was  $1,  and  that  the  donor  the  same  day  executed  a  writing  reciting  that  the 
land  conveyed  was  conveyed  "  as  portion  of  his  [tlie  son's]  patrimony,"  giving 
the  actual  value  of  the  land,  it  was  held  that  this  writing  was  admissible  to  show 
that  the  land  conveved  was  an  advancement :  Power  v.  Power,  52  N.  W.  Rep.  60. 


Evidence — Rebutting  Presumption.  591 

597.  EviDEXcE  TO  Rebut  Presumption  Arising  from 
Purchase  ix  Name  of  and  Conveyance  to  Child. — 
Parol  or  other  legitimate  evidence  is  always  admissible  to 
rebut  the  presumption  of  an  advancement  arising  from 
the  act  of  a  parent  purchasing  land  in  the  name  of  and 
jDrocuring  it  to  be  conveyed  to  his  child.  This  evidence 
must  be  such  as  to  show  his  intentions  at  the  time  of  the 
purchase  of  the  conveyance,  or  at  the  time  of  the  conveyance 
or  both.^  This  rule  applies  to  purchases  of  both  real  and 
personal  property.^  Thus  a  father  having  purchased  stock 
in  his  son's  name,  the  latter  gave  him  a  power  of  attorney 
to  receive  the  dividends,  which  he  did  during  his  life ;  yet 
the  transaction  was  adjudged  to  show  an  advancement 

If  the  object  of  the  conveyance  is  to  protect  the  land  from  ilie  grantor's  credit- 
ors it  is  no  advancement,  though  we  apprehend  the  grantee  would  keep  tiie  hind: 
Jackson  t;.  Matsdurf,  11  Johns.  91. 

Where  a  husband  conveyed  land  to  his  wife,  remained  in  possession,  ]iaid  the 
taxes  and  improved  it,  and  the  wife  in  her  will  made  no  allusion  to  it,  it  was  iield 
that  the  presumption  that  it  was  an  advancement  was  not  repelled  :  Maxwell  v. 
Maxwell,  109  111.  588. 

If  the  deed  recites  that  the  conveyance  is  a  gift  by  way  of  advancement,  parol 
evidence  to  contradict  this  statement  is  not  admissible  unless  there  Ikls  i)een  an 
accident,  mistake,  or  fraud :  Lott  v.  Kaiser,  61  Tex.  605. 

There  is  a  line  of  old  authorities  which  hold  that  if  the  deed  recites  a 
receipt  of  the  consideration  in  money,  parol  evidence  is  not  admissible  to 
show  the  actual  consideration:  Hooper  v.  Eyles,  2  Vern.  480;  Williams  v. 
Williams,  3  West.  L.  Mag.  258 ;  Ambrose  v.  Ambrose,  1  P.  Wms  321 ;  Ryal  r. 
Ryal,  1  Atk.  59. 

Where  a  father  had  no  other  property  thnn  that  he  hnd  conveyed  to  his  infant 
son,  and  he  made  no  provision  for  either  his  wife  or  ciiildren,  and  after  the  con- 
veyance the  father  remained  in  possession  and  treated  the  land  as  his  own  in 
every  respect,  the  presumption  of  a  gift  or  advancement  was  deemed  rebutted : 
Hall  V.  Hall,  mpra.  Acts  of  ownership  asserted  over  the  property  ccnveyed 
are  alwavs  admissible  to  rebut  the  presumption  of  a  gift  or  advancement: 
Stock  r.  McAvoy,  15  L.  R.  Eq.  55  ;  S.  C.  42  L.  J.  Ch.  230;  21  W.  R.  520;  27 
L.  T.  441. 

1  Murless  v.  Franklin,  1  Swan.  13;  Jeans  v.  Cook,  24  P.eav.  513;  S.  C.  4  Jur. 
K.  S.  57;  27  L.  J.  Ch.  202  ;  Williams  r.  Williams,  32  P.eav.  370;  Shepherd  r. 
White,  10  Tex.  72 ;  S.  C.  11  Tex.  34G  ;  Lott  v.  Kaiser,  61  Tex.  665 ;  Page  v.  Page, 
8  N.  II.  187  ;  Kerr  v.  Dickinson,  7  Siip.  Ct.  Rep.  of  N.  S.  W.  12. 

2  O'Brien  v.  Shell,  7  Ir.  Eq.  255;  Fox  v.  Fox,  15  Ir.  Ch.  89. 


592  Advancements. 

and  not  a  trust.^  In  the  case  of  land  purchased  by  a 
father  in  his  child's  name,  it  was  shown  that  the  father 
agreed  to  allow  a  tenant  to  retain  his  possession  at  an 
increased  rent  without  consulting  the  child,  and  during 
his  life  received  the  rent  and  paid  the  outgoings ;  and  it 
was  held  that  this  ostensible  possession  by  the  father  re- 
butted the  presumption  of  an  advancement.^ 

598.  Advancement  in  Writing. — If  a  transaction  is 
in  writing,  and  the  claim  is  made  that  it  is  a  gift  on  the 
one  side  and  an  advancement  on  the  other,  the  authorities 
are  not  in  unison  as  to  Avhether  parol  evidence  is  admissi- 
ble to  show  either  the  one  or  the  other.  It  is  easy  to  see 
how  various  phases  of  this  inquiry  may  arise.  Suppose 
the  writing  declares  that  the  property  is  given  purely  as  a 
gift,  or  as  an  advancement ;  or  it  simply  avers  words  of  gift 
without  declaring  that  it  shall  be  taken  as  an  advance- 
ment. It  is  quite  evident  that  in  the  latter  instance  the 
question  must  be  judged  somewhat  from  a  different  stand- 
point than  it  would  in  the  two  former  instances.     In  the 

1  Sidraontli  v.  Sidmouth,  2  Bear.  447  ;  S.  C.  9  L.  J.  Ch.  N.  S.  282  ;  O'Bren  v. 
Sheil,  7  Ir.  Eq.  255. 

Where  the  purchase  of  stock  is  made  in  the  joint  names  of  father  and  child,  or 
wife,  and  the  fatlier  causes  the  transfer  to  be  made  jointly  t  >  liiinself  and  hiscliildor 
wife,  evidence  to  rebut  the  presumption  of  a  gift  or  advancement  must  be  cogent 
to  overcome  such  presumption  ;  and  the  fact  that  the  parent  drew  the  dividends 
on  the  stock  is  regarded  as  rather  immaterial  in  showing  his  dominion  over 
the  stock :  Fox  v.  Fox,  15  Ir.  Ch.  89 ;  George  v.  Howard,  7  Price,  661 ;  Down 
V.  Ellis,  35  Beav.  578;  Forrest  v.  Forrest,  11  Jur.  N.  S.  317;  S.  C.  34  L. 
J.  Ch.  428;  13  \V.  R.  380;  11  L.  T.  N.  S.  763;  Fowkes  v.  Pascoe,  10  L.  R. 
Ch.  343 ;  S.  C.  44  L.  J.  Ch.  367 ;  32  L.  T.  545 ;  23  W.  R.  538 ;  Devoy  v.  Devoy, 
3  Jur.  N.  S.  79;  26  L.  J.  Ch.  290;  3  Sm.  &  G.  403.  Shnres  of  .«tork  trans- 
ferred by  a  father  into  his  son's  name  merely  to  qualify  him  as  a  director  is 
not  an  advancement :  Gooch,  In  re,  62  L.  T.  3S4  ;  S.  C.  W.  N.  C.  (1890)  59 ;  6  T. 
L.  Rep.  224. 

2  Stock  V.  McAvoy,  15  L.  R.  Eq.  55 ;  42  L.  J.  Ch.  320 ;  21  W.  R.  520 ;  27  L.  T. 
441.  In  this  case  there  was  also  evidence  of  an  intention  to  recover  successive 
life  interests  to  the  father  and  mother;  and  this  was  held  a  distinct  indication 
that  no  advancement  was  intended.  See,  also,  Nicholson  v.  Mulligan,  17  W.  R. 
659  ;  S.  C.  3  Ir.  Eq.  308. 


Evidence — Rebutting  Presumption.  593 

one  the  intention  is  clearly  put  in  writing,  the  highest  and 
best  evidence  that  can  be  used  to  show  the  intention  ;  while 
in  the  other  the  intention  is  merely  an  inference  of  law 
from  the  facts  stated  in  the  paper.  And  it  may  be  laid 
down  as  a  rule  that,  in  the  absence  of  fraud,  accident,  or 
mistake,  where  the  instrument  of  gift  recites  that  the 
property  is  an  absolute  gift  or  a  gift  by  way  of  advance- 
ment, parol  evidence  is  not  admissible  to  vary  or  contra- 
dict its  terms/  But  where  only  words  of  gift  are  used — 
or  words  of  conveyance — and  nothing  is  said  that  the 
property  giv^en  shall  be  an  advancement  or  a  gift,  then 
parol  or  other  evidence  is  admissible  to  show  that  it  was 
either  a  gift  or  an  advancement.^ 

599.  "Will  Declaring  What  Shall  Be  Deemed  an 
Advancement. — If  a  will  declares  what  shall  be  consid- 
ered an  advancement,  then  no  evidence  is  admissible  to  in 
fact  show  that  it  was  not.  If  the  transaction  was  an  abso- 
lute gift,  yet  the  testator  may  charge  the  donee  with  it  as 
an  advancement,  by  declaring  that  it  sliall  be  so  consid- 
ered, and  the  donee  cannot  object.^     If  the  will  is  clear 

'  Lott  V.  Kaiser,  61  Tex.  665;  see,  also,  Marshall  v.  Rench,  3  Del.  Ch.,  p.  257, 
where  the  same  rule  is  strongly  enforced  ;  Kirk  v.  Eddowes,  3  Hare,  509 ;  Weems 
r.  Andrews,  22  Ga.  4.'^. 

2  Phillips  V.  Chappell  16  Ga.  16;  see  Weall  v.  Rice,  2  R.  &  M.  251,  263, 
Booker  v.  Allen,  2  R.  &  M.  270;  Lloyd  v.  Harvey,  2  R.  &  M.  310,  316;  Lord 
Glengall  v.  Barnard,  1  Keen,  769. 

It  may  be  shown  that  a  note  given  by  a  son  to  a  father  was  never  to  be  paid, 
but  the  amount  for  which  it  was  given  was  to  be  considered  an  advancement: 
Dawson  v.  Macknet,  42  N.  J.  Eq.  683;  Brook  v.  Latimer,  44  Kan.  431 ;  Grey  v. 
Grey,  22  Ala.  233;  Jennings  v.  Jennings,  2  Heisk.  283;  Ruch  v.  Bicry,  110  Ind. 
444;  Harris  v.  Harris,  69  ind.  181,  unless  some  positive  statute  forbids  it:  Glan- 
ton  V.  Whitaker,  75  Ga  523. 

2  McAllister  v.  Butterfield,  31  Ind.  25  ;  Nolan  v.  Bolton,  25  Ga.  352.  In  this 
case  the  will  ran  :  '*It  is  my  will  and  desire  that  at  the  division  of  my  property 
each  one"  [legatee]  ''shall  be  cha;ged  with  and  account  for  in  said  division  all 
money  or  property  they  have  received  from  me,  so  as  to  make  them  share  equally 
in  the  property  to  be  divided,  and  in  advance."  It  was  held  that  this  covered 
both  debts  nnd  gifts. 

The  word  "advancement"  used  in  a  will  need  not  be  given  its  techuical  sense 

38 


594  Advancements. 

then  no  resort  can  be  had  to  parol  or  other  evidence  to 
determine  what  is  or  is  not  an  advancement ;  for  that  is 
fixed  by  the  will,  and  is  to  be  determined  solely  by  a  con- 
struction of  its  terms.^ 

600.  Amount  of  Intestate's  Estate — Value  of 
Gift — Surrounding  Facts. — It  is  always  admissible  to 
show  the  amount  of  the  intestate's  property  at  the  time 
the  gift  is  made  (not  at  the  time  of  his  death),  the  amount 
or  value  of  the  property  given  to  the  heir  sought  to  be 
charged  with  an  advancement,  and  the  amount  or  value 
of  any  property  given  to  any  of  the  other  heirs  of  the  de- 
ceased. If  the  amount  given  is  large,  it  will  be  assumed 
to  have  been  an  advancement,  in  the  absence  of  proof  to 
the  contrary,^  especially  where  it  is  shown  that  the  gift 
was  a  very  considerable  portion  of  the  donor's  estate,'^ 
though   mere  inquality  is  not  enough  ;  *  nor  is  the  fact 

if  the  testator  evidently  did  not  use  it  in  tliat  sense,  bnt  did  not  use  it  in  a  popular 
sense:  Eisner  v.  Koehler,  1  Dem.  277. 

1  Hufsmith's  Estate,  65  Pa.  St.  141  ;  litimmel  v.  Hummel,  80  Pa.  »St  420;  Wood- 
ruffs. Migeon,  46  Conn.  236;  Lyon's  Estate,  70  la.  375;  Wright's  Estate,  6  W.  N. 
fj.  387  ;  S.  C.  89  Pa.  St.  67  ;  93  Pa.  St.  82. 

Evidence  is  not  admissible  to  contradict  the  recitals  of  a  will  :  McAllister  r. 
Biitterfield,  31  Ind.  25;  nor  to  show  that  there  was  a  mistake  in  the  amount  the 
will  alleges  was  advanced :  Painter?'.  Painter,  18  Ohio,  247;  but  otherwise  of  a 
book  entry  :  AUeman  v.  Manning,  44  Mo.  App.  4,  9. 

Nor  can  an  inequality  in  the  advancements  raise  an  intention  contrary  to  that 
expressed  in  the  will :  McFall  v.  Sullivan,  17  S.  C.  504  ;  Andrews  v.  Halliday,  63 
Ga.  263. 

Power  given  in  a  will  to  advnnce  gives  power  to  advance  by  deed  of  real  estate: 
Freiike  v.  Auerbach,  72  Md.  580. 

When  a  clause  in  will  applies  only  to  the  residueof  estate,  and  tliereisno  residue, 
the  law  of  advancements  does  not  apply :  Hammett  v.  Hamniett,  16  S.  E.  Kep. 
293. 

2  Bruce  v.  Griscora,  9  Hlin,  280  283  ;  Grattan  v.  Grattan,  18  111.  167  ;  Kintz 
V.  Friday,  4  Dem.  540,  543  ;  Clements  v.  Hood,  57  Ala.  459  ;  Fennell  v.  Henry, 
70  Ala.  484;  Merrill  v.  Rhodes,  37  Ala.  449;  Autrey  v.  Autrey,  37  Ala.  614; 
Smith  V.  Smith,  21  Ala.  761. 

'Tuggle  V.  Tuggle,  57  Ga.  520;  White  v.  White,  3  Dana,  374  ;  Kn abb's  Estate, 
30  Leg.  Int  361  ;  S.  C.  1  Leg.  Cliron.  337. 

^  Comer  v.  Comer,  119  111.  170 ;  Johnson  v.  Belden,  20  Conn.  322. 


Evidence — Rebutting  Presumption.  595 

that  the  father  was  jDoor  sufficient  alone  to  show  that  the 
son  holds  the  property  as  trustee  where  the  father  pur- 
chases the  property  m  the  name  of  the  son.^  "  What  are, 
or  are  not,  advancements,  must  always  depend  very  much 
on  the  condition  in  life  of  the  parties,  and  may  be  abso- 
lutely fixed  by  their  intentions  at  the  time,  if  they  can  be 
ascertained."  ^  So  the  facts  surrounding  the  transaction 
may  always  be  shown,  or  at  least  may  be  shown  when  the 
evid-^nce  is  not  satisfactory ;  and  we  have  no  hesitancy 
in  saying  that  "  surrounding  circumstances,"  ^  may  al- 
ways be  shown,  either  to  aid  the  presumption  of  a  gift  or 
to  rebut  it.* 

601.  Unequal  Distribution. — An  unequal  distribu- 
tion of  the  intestate's  estate,  which  will  result  if  the  donee 
is  not  required  to  account  as  an  advancement  for  the 
property  given,  is  not  alone  sufficient  to  establish  an  ad- 
vancement ;  it  does  not  show  the  intention  of  the  donor, 
although  it  may  aid  in  arriving  at  that  intention  upon  the 
view  that  "equality  is  equity,"  and  that  a  presumption  is 
indulged  in  that  a  parent  usually  intends  to  make  an 
equal  distribution  of  his  property  at  his  deatli.^ 

^  Page  V.  Page,  8  N.  H.  187,  202.  Evidence  that  the  property  given  a  son  was 
inherited  by  the  father  from  tlie  son's  mother  is  too  remote  to  show  a  gift  and 
not  an  advancement,  and  is  not  admissible :  Thistlewaite  v.  Thistlewaite,  132 
Ind.  355 ;  S.  C.  31  N.  E.  Rep.  946. 

*  YouDgblood  V.  Norton,  1  Strob.  Eq.  122.  So  where  a  father  gave  four  chil- 
dren each  a  tract  of  land,  and  charged  upon  each  tract  the  payment  of  certain 
sums  of  money  payable  to  a  designated  person,  but  the  amount  charged  upon  the 
tract  given  an  invalid  child  was  very  much  less  than  the  several  sums  charged 
on  the  other  three  tracts,  it  was  held  that  tlie  court  would  consider  such  child's 
physical  condition  and  ability  to  earn  money  to  pay  the  charge,  in  determining 
whether  the  intestate  meant  that  the  four  portions  should  be  considered  equal 
advancements  :  Burbeck  v.  Spollen,  10  Am.  Rec.  491. 

'Lawyers  and  courts  still  insist  on  using  this  tautological  phrase. 

*Ruch  V.  Biery,  110  Ind.  444;  Parks  v.  Parks,  19  Md.  323;  Clark  v.  Willson, 
27  Md.  693  ;  Dutch's  Appeal,  57  Pa.  St.  461. 

^Corner  v.  Comer,  119  111.  170;  Johnson  v.  Belden..  20  Conn.  322.  Still,  see 
Patterson's  Appeal,  128  Pa.  St.  269. 


596  Advancements. 

602.  BuEDEN — Sufficiency  of  Evidence — Question 
FOR  Jury. — If  the  flicts  proved,  without  the  introduction 
of  any  evidence  of  the  intestate's  intention,  raise  a  pre- 
sumption of  an  advancement,  or,  on  the  other  hand, 
a  presumption  of  a  gift,  then  the  party  claiming,  in  the 
first  instance,  that  it  is  not  an  advancement,  and  tlie  party 
claiming,  in  the  second  instance,  that  it  is  not  a  gift,  has 
the  burden  of  rebutting  the  presumption  raised  by  the 
law.^  But  until  such  evidence  is  introduced,  showing  the 
transaction,  as  raises  a  presumption  of  an  advancement, 
the  party  alleging  that  the  transaction  was  such  advance- 
ment has  the  burden  of  showing  the  truth  of  his  allega- 
ton.^  Loose  declarations  of  the  intestate  are  not  enough 
to  change  a  debt  to  an  advancement  or  gift.^  And  where 
the  deed  from  a  parent  to  a  child  recites  only  a  nominal 
consideration,  or  one  totally  inadequate  as  a  fair  price  for 
the  land ;  or  where  it  is  shown  that  the  parent  purchased 
the  land  and  had  it  conveyed  to  the  son — then  the  pre- 
sumption that  the  transaction  was  an  advancement  "  is  not 
to  be  frittered  away  by  mere  refinements."  *  No  particu- 
lar words  are  necessary,  so  the  intestate's  intention  is 
clearly  made  to  appear ;  ^  but  vague  and  unsatisfactory 
proof  is  not  enough  to  turn  what  the  law  regards  as  a 

^ Piper?;.  Barse,  2  Eedf.  19;  Middleton  v.  Middleton,  31  la.  151;  Clemenls  v. 
Hood,  57  Ala.  459;  Burton  v.  Baldwin,  61  la.  283;  Jones  v.  Kinnear,  4  R.  &  G. 
(Nov.  Sco.)  1. 

*  Middleton  v.  Middleton,  supra;  Clements  v.  Hood,  supra;  Piper  v.  Barse, 
supra. 

3  Harley  v.  Hailey,  57  Md.  340 ;  Harerstook  v.  Sarback,  1  W.  &  S.  390  ;  Porter 
V.  Allen,  3  Pa.  St.  390;  Ynndt's  Appeal,  13  Pa.  St.  575  ;  High's  Appeal,  21  Pa.  Si. 
283;  Roland  v.  Sclirack,  29  Pa.  St.  125;  Miller's  Appeal,  40  Pa.  St.  57;  Dutch's 
Appeal,  57  Pa.  St.  461 ;  Arnold  v.  Barrow.  2  P.  &  H.  (Va.)  1  ;  McDearman 
V.  Hodiiett,  83  Va.  281  ;  Storey's  Appeal,  83  Pa.  St.  89 ;  Trimmer  v.  Bayne,  7  Ves. 
508;  Robinson  v.  Wliitley,  9  Ves.  577  ;  Powys  r.  Mansfield,  3  Mylne  &  Cr.  359. 

*  Finch  V.  Finch,  15  Ves.  43  ;  Jeans  v.  Cooke,  24  Beav.  513  ;  S.  C.  4  Jur.  N.  S.  57 ; 
27  L.  J.  Ch.  202;' Fox  v.  Fos,  15  Ir.  Ch.,  p.  95;  Johnson  v.  Patterson,  13 
Lea,  626. 

*Bulkeley  v.  Noble,  2  Pick.  337  ;  Batton  v.  Allen,  1  Halsi.  Ch.  99. 


Evidence — Rebutting  Presumption.  597 

gift  into  an  advancement.^  Whether  or  not  there  has 
been  an  advancement  or  gift  is  a  question  for  the  jury  ^ 
unless  the  facts  are  uncontroverted,  when  it  is  for  the 
court ;  ^  but,  of  course,  if  different  conclusions  may  be 
drawn  from  the  facts  as  to  the  intestate's  intention,  then 
the  question  is  one  for  the  jury. 

1  White  V.  Moore,  23  S.  C.  456. 

2  Datt's  Estate,  34  Pitts.  L.  Jr.  349. 

»  Yeich'a  Appeal,  1  Mona.  (Pa.)  296. 


CHAPTER  XXII. 


HOTCHPOT. 


603.  Doctrine  of  Hotchpot. 

604.  For  what  Property  Heir  Must  Ac- 

count. 

605.  Application  to  Wife  or  Widow  of 

Deceased  Donor. 

606.  Doctrine   Applicable    to   All    Dis- 

tributees. 

607.  Distributee  Not  Compelled  to  Bring 

Advanced  Property  into  Hot- 
potch — Over-advancement  —  In- 
fant. 

Kind  of  Property  to  be  Brought  In 
— Value. 

Agreement  of  Distributees  with 
Other  Distributees  to  Account 
for  Property  Advanced. 

610.  Refusal  to  Come  in  First  Distribu- 

tion Does  Not  Bar  Right  to 
Come  and  Share  Second  Distri- 
bution. 

611.  Estimating  Value  of  Advancement 

— Time  of. 


608. 


609. 


612.  Value  of  Imperfect  Gift   which 

is  Perfected  at  Later  Date. 

613.  Value  Fixed  by  Will. 

614.  Charging  Donee  witii  Interest  on 

Property  Advanced. 

615.  Rents    and     Profits  —  Increased 

Value. 

616.  Improvements    Erected    by   Do- 

nee. 

617.  Property  Wasted  or  Destroyed — 

Slaves  Emancipated. 

618.  Efiect  on  Title  to  Property  Ad- 

vanced by  Bringing  into  Hotch- 
pot. 

619.  Statute  of  Limitations. 

620.  Not  a  Part  of  Assets  of  Estate. 

621.  How  Question  of  Advancement 

Litigated — Partition. 

622.  Competency  of   Advanced    Dis- 

tributee to  be  a  Witness. 


603.  Doctrine  of  Hotchpot. — Strictly  speaking,  the 
term  "  hotchpot "  is  not  applicable  to  a  case  of  settling  an 
intestate's  estate  with  reference  to  the  requirement  that 
advanced  distributees  shall  bring  in  and  account  for  ad- 
vancements made  them  by  the  intestate  in  his  lifetime ; 
but  various  statutes  have  the  term  incorporated  in  their 
provisions,  and  the  doctrine  of  one  rather  obscure  term 
has  been  applied  to  the  distribution  of  the  estates  of  in- 
testates, and  even  to  instances  of  partial  intestacy.  The 
best  description  of  the  term  can  be  drawn  from  Little- 
ton's own  words.  "  If  a  man  seized  of  certain  lands  in  fee 
598 


Hotchpot.  599 

simple,''  says  he,  "  has  issue  two  daughters,  and  the  eklest 
is  married,  and  the  father  giveth  part  of  his  lands  to  the 
husband  with  his  daughter  in  franh-marriage,  and  dieth 
seized  of  the  remnant,  the  which  remnant  is  of  a  greater 
yearly  value  than  the  lands  given  in  frank-marriage.  In 
this  case  neither  the  husband  nor  wife  shall  have  any- 
thing for  their  purparty  of  the  said  remnant,  unless  they 
will  put  their  lands  given  in  frank-marriage  in  hotchpot, 
with  the  remnant  of  the  land,  with  her  sister.  And  if 
they  will  not  do  so,  then  the  youngest  may  hold  and 
occupy  the  same  remnant,  and  take  the  profits  only  to 
herself  And  it  seemeth  that  this  word  [hotchpot]  is  in 
English  di,  pudding  ;  for  in  this  pudding  is  not  commonly 
put  one  thing  alone,  but  one  thing  with  other  things  to- 
gether. And  therefore  it  behooveth  in  this  case  to  put 
the  lands  given  in  frank-marriage  with  the  other  lands  in 
hotchpot  (that  is,  to  estimate  their  value  in  the  division), 
if  the  husband  and  wife  will  have  any  part  in  other 
lands."  ^  Blackstone  says,  in  commenting  upon  the  use 
of  the  word  "  hotchpot,"  "  By  this  housewifely  metaphor 
our  ancestors  meant  to  inform  us  that  the  lands,  both  those 
given  in  frank-marriage  and  those  descending  in  fee 
simple,  should  be  mixed  and  blended  together,  and  then 
divided  in  equal  portions  among  all  the  daughters.  But 
this  was  left  to  the  choice  of  the  donee  in  frank-marriage : 
and  if  she  did  not  choose  to  put  her  lands  into  hotchpot, 
she  was  presumed  to  be  sufficiently  provided  for,  and  the 
rest  of  the  inheritance   was   divided    among   her   other 

» 1  Thomas'  Coke,  720 ;  Coke  Litt.  176.  The  entire  chapter  of  Coke  on  Little- 
ton from  176  (sect.  265  to  180  a  (sect.  276)  is  very  interesting  for  its  meaning  in 
tlie  old  law,  and  this  is  especially  so  of  Bu'Jer  and  Hargrave's  notes.  "Hutspot 
or  hotspot  is  an  old  Saxon  word,"  says  Coke,  "  and  signifieth  so  much  as  Littletcn 
here  speaks.  And  the  French  use  liotclipot  for  a  coramixion  of  divers  things  to- 
gether. It  signifieth  here  metaphorically  inparlem  podtlo.  In  English  we  use  to 
say  hodgepodge,  in  Latin  farago  or  mi^cellaneura."— Coke  Litt.  177  a. 


600  Advancements. 

sisters.  The  law  of  liotchpot  took  place  then  only  when 
the  other  lands  descending  from  the  ancester  were  fee 
simple ;  for  if  they  descended  in  tail,  the  donee  in  frank- 
marriage  was  entitled  to  her  share,  without  brino-ino- 
her  lands  into  hotchpot.  And  the  reason  is,  because 
lands  descending  in  fee  simple  are  distributed,  by  the 
]3olicy  of  law,  for  the  maintenance  of  all  the  daughters ; 
and  if  one  has  sufficient  provision  out  of  the  same  in- 
heritance, equal  to  the  rest,  it  is  not  reasonable  that  she 
should  have  more  ;  but  lands  descending  in  tail  are  not 
distributed  by  the  operation  of  law,  but  by  the  designa- 
tion of  the  g\YQY,  per  fornam  doni  ;  it  matters  not  there- 
fore how  unequally  this  distribution  may  be.  Also  no 
lands,  but  such  as  are  given  in  frank-marriage,  shall  be 
brought  into  hotchpot ;  for  no  others  are  looked  upon  in 
law  as  given  for  the  advancement  of  the  women,  or  by 
way  of  marriage  portion.  And,  therefore,  as  gifts  in 
frank-marriao;e  are  fallen  into  disuse,  I  should  hardlv 
have  mentioned  the  law  of  hotchpot,  had  not  this  method 
of  division  been  revised  and  copied  by  the  statute  for  dis- 
tribution of  personal  estates."  ^ 

604.  For  what  Property  Heir  Must  Account. — 
It  has  already  been  discussed  as  to  what  property  may 
constitute  an  advancement.  The  English  statute  related 
only  to  advancements  in  personal  property  ;  but  statutes 
in  this  country  usually  apply  the  doctrine  of  advance- 
ments both  to  real  and  personal  property.^ 

^2  B'ack.  Com.  ]90,  191.  The  liistorical  side  of  hotchpot  is  discussed  in  the 
following  casei? :  Wariield  v.  Warfield,  5  11  &  J.  439  ;  Terry  v.  Davton,  81  Barb. 
519  ;  Law  v.  Smith,  2  R.  I.  244;  Hall  v.  Davis,  3  Pick.  450;  Marshall  v.  Rench,  3 
Del.  Cli.  254. 

In  M'Caw  v.  Blewit,  2  McC.  Ch.  90,  it  is  said  that  by  the  use  of  the  term 
hotchpot  in  tlie  Statute  of  Distributions  was  meant  that  each  child  is  to  draw  at 
tiie  death  of  the  parent  ;in  equal  proportion. 

*H:imer  v.  Hamer,  4  Strobh.  Eq.  124. 

A  devisee  under  a  will,  if  there  is  a  partial  intestacy,  is  not  compelled  to  bring 


Hotchpot.  601 

605.  Application  to  Wife  or  Widow  of  Deceased 
DoNOK. — The  duty  of  an  advanced  distributee  to  account 
for  gifts  by  way  of  advancement  does  not  apply  to  the 
wife  or  widow  of  the  deceased  donor  ^  unless  the  statute 
in  express  words  require  it.^  Consequently  the  fact  that 
she  has  received  property  from  her  husband  under  such 
circumstances  that  it  would  be  an  advancement  if  she 
were  his  child  does  not  affect  or  reduce  the  amount  she 
would  be  entitled  to  if  she  had  not  received  such  prop- 
erty,^ unless  the  statute  in  words  is  made  applicable  to 
her.  And  since  she  cannot  be  compelled  to  account  for 
property  she  has  received,  neither  can  she  compel  her 
husband's  heirs  to  account  for  property  they  have  re- 
ceived as  advancements  in  order  to  increase  her  share  of 
the  estate ;  and  if  an  heir  at  the  instance  of  a  co-heir  is 
compelled  to  bring  in  property  he  has  received  by  way  of 
advancement,  her  share,  although  her  husband  has  not 
given  her  any  property,  cannot  be  thereby  augmented.'' 

into  liotchpot  the  |.ropeity  taken  under  the  will,  unless  the  will  especially  Ji- 
recieJ  that  he  shall  be  charged  therewitii  in  the  final  distribution:  C'awHicld  v. 
Brown,  45  Ala.  5-52  ;  Nettleton  v.  Neltleton,  17  Conn.  542;  Biedler  v.  Biedler,  87 
Va.  300. 

1  Barnes  v.  Allen,  25  Ind.  222;  Miller's  Will,  73  la.  118;  Euch  v.  Biery,  110 
Ind.  444;  Willelts  v.  Willetts,  19  Ind.  22 ;  Porter  v.  Collins,  7  Conn.  1 ;  Rioliards 
V.  Richards,  11  Humph.  423;  McDearman  v.  Hodnett,  83  Va.  281 ;  Jackson  v. 
Jackson,  28  Miss.  674;  Whitley  v.  Stephenson,  38  Miss.  113;  Morgan,  In  re,  104 
N.  Y.  74;  Knight  v.  Oliver,  12  Gratt,  33;  Miller's  Estate,  2  Brewster  (Pa.),  355; 
Greiner's  Appeal.  103  Pa.  St.  89;  Murray's  Estate,  2  Pears.  (Pa.)  473. 

2  Davis  V.  Duke.  1  Taylor  (N.  C),  213  (102) ;  S.  C.  Conf.  Rep.  361  (439) ;  Little- 
ton V.  Littleton,  ID.  &  B.  327  ;  Headen  v.  Headen,  7  Ired.  Eq.  159. 

« Jackson  v.  Jackson,  28  Miss.  674;  Wiiitley  v.  Stephenson,  38  Miss.  113. 

*  Miller's  Estate,  2  Brewster  (Pa.),  355;  Knight  v.  Oliver,  12  Gratt.  33;  Mc- 
Dearman V.  Hodnett,  83  Va.  281  ;  Brunson  v.  Brunson,  Meigs,  630;  Richards  v. 
Richards,  11  Humph.  428  ;  Porter  v.  Collins,  7  Conn.  1 ;  Murray's  Estate,  2  Pears. 
(Pa.)  473;  Logan  v.  Logan,  13  Ala.  653;  Andrews  v.  Hall,  15  Ala.  85;  Rnch  r. 
Biery,  110  Ind.  444;  Willetts  v.  Willetts,  19  Ind.  22.  She  simply  takes  a  share 
of  wiiat  her  husband  possessed  at  his  death  :  Miller's  Will,  73  la.  1 18.  Of  course 
a  statute  may  put  her  on  the  same  fo  ting  with  her  children  :  Boyd  v.  White,  32 
Ga.  530;  Headen  v.  Headen,  7  Ired.  Eq.  159. 

Where  it  appeared  that  the  father  had  delivered  to  his  daughter-a  married 


602 


Advancements. 


606.  Doctrine  Applicable  to  All  Distributees. 
— With  the  exception  of  the  wife  or  widow  of  the  intes- 
tate, and  sometimes  she  is  included,  as  we  have  seen  in  the 
previous  section,  the  doctrine  is  applicable  to  all  the  dis- 
tributees of  the  estate,  to  all  the  heirs  of  the  intestate ;  to 
the  eldest  son,^  and  to  an  infant,'^  or  imbecile  child.'* 

607.  Distributee  Not  Compelled  to  Bring  Ad- 
vanced Property  into  Hotchpot — Over-Advanced — 
Infant. — The  law  does  not  compel  an  advanced  dis- 
tributee to  bring  his  property  into  hotchpot ;  it  is  en- 
tirely optional  with  him,  the  only  penalty  inflicted  upon 
him  for  declinhig  to  account  for  the  advanced  property  is 
to  prohibit  his  participation  in  the  distribution  of  the  in- 
testate's assets ;  if,  therefore,  an  heir  has  been  advanced 
more  than  he  would  receive  if  the  amount  of  the  ad- 
vanced property  were  added  to  the  property  of  the 
intestate,  he  may  decline  to  biiiig  his  pro{)erty  into 
hotchpot  and  refuse  to  refund  the  excess,  and  there  is  no 
power  to  compel  him  to  account  for  it.*  But  if  an  ad- 
woman — i)roperty  of  the  value  of  $1,070,  and  took  iier  bond  payable  on  dLinand 

fur  $'J70,  but  made  no  charj^e  against  liei-  upon  his  books  of  an  advancetuent ;  it  was 
lield  thai  tiie  difference  between  the  value  of  the  property  and  tiie  bond  was  not 
intended  as  an  advancement,  bnt  a  gift,  and  that,  although  the  payment  of  the 
bond  could  not  be  enforced,  the  oljligor  was  not  entitled  to  paiticipate  in  the  dis- 
tribution of  her  fatiier's  estate  until  she  paid  it  or  submitted  to  have  it  charged 
ag:iinst  lier:   Walker  v.  Brooks,  99  N.  C.  207. 

•Doe  V.  Saunders,  2  Kerr  (N.  B.),  18;  Kircu(ll>right  v.  Kircudbright,  8  Ves. 
61 ;  Pratt  v.  Pratt,  Fitzg.  284;  S.  C.  2  Stra.  9:^>5. 

2  Powell  V.  Powell.  5  Dana,  108.     But  see  Wilson  w.  Wilson,  18  Ala.  17G. 

^Eastham  v.  Powell,  51  Ark   530. 

♦Marston  v.  Lord,  Go  N.  H.  4;  Phillips  «.  McLaughlin,  20  Miss.  592 ;  Ken- 
nedy V.  Badgett,  26  S.  C.  591  ;  Wilk  v.  fJr.-er,  14  Ala.  437  ;  Coleman  v.  Smith,  55 
Ala.  3fi8  ;  Thompson  v.  Thomp.son,  1  Yerg.  97;  llamer  v.  Hamer,  4  Strobh.  Eq. 
124;  Taylor  v.  Reese,  4  Ala.  121. 

A  child  born  after  a  will  is  executed  cannot  recover  from  brothers  or  sisters 
advanced  before  its  e.'^ecution :  Sanford  v.  Saiiford,  Gl  I'arb.  29.'^ 

A  creditor  of  the  advanced  distributee  is  bound  by  his  refusal  to  bring  the  ad- 
vanced pro{)erty  into  hotchpot  :  Stone  v.  Ilalley,  1  Dana,  197. 


Hotchpot.  G03 

vanced  distributee  desires  to  participate  in  the  assets  of 
the  estate  of  his  donor  he  must  first  bring  into  hotchpot 
the  value  of  the  property  he  received/  or  at  least  consent 
that  it  may  be  considered  in  making  the  division.^  If  all 
the  heirs  have  been  equally  advanced,  then  it  is  not 
necessary  to  bring  it  into  hotchpot;^  but  if  a  part  of  the 
property  received  was  a  gift  and  part  an  advancement, 
then  the  part  that  was  an  advancement  must  be  accounted 
for.*  When  the  advanced  distributee  is  an  infant,  and 
consequently  incapable  to  consent  that  the  property  ad- 
vanced shall  be  brought  in,  then  the  court  will  act  for 
him,  and  if  it  be  to  his  interest  that  the  property  be 
brought  in,  the  court  will  so  order,  but  if  not,  the  court 
will  not  so  order.^  The  refusal  of  an  advanced  adult  distri- 
butee to  bring  in  the  amount  of  property  he  has  received 

*  Marston  v.  Lord,  65  N.  H.  4  ;  Smrilevnnt  i-.  Goodrich,  3  Yerg  P5 ;  Pearce  r. 
Gleaves,  10  Yerg.  3G0 ;  Gold  v.  Vaughn,  4  Sneed,  245  ;  Perry  v.  [ligh,  3  Head, 
349  ;  Vance  v.  Huling,  2  Yerg.  133  ;  Farnsworth  v.  Dinsinore,  'A  Swan.  38  ;  Walker 
V.  Brooks,  99  N.  C.  207;  Slierwood  v.  Wooster,  11  Paige,  441 ;  Haw  ley  v.  James, 
5  Paige  Ch.  318  ;  Ray  v.  Loper,  65  Mo.  470 ;  St.  Vrain,  In  re,  1  Mo.  App.  294  ; 
Grattan  i-.  Grattan,  18  ill.  167 ;  Haden  v.  Haden,  7  J.  J.  Mar.  168 ;  Nelson  v. 
Bush,  9  Dana,  104;  Sims  v.  Sims,  39  Ga.  108;  Mitchell  r.  Mitchell,  8  Ala.  414  ; 
Wilson  ti.  Wilson,  IS  Ala.  176. 

'In  some  of  the  States  no  provi>ion  is  made  for  bringing  in  the  amount  of  the 
property  advanced,  but  the  advanced  distributee  is  simply  charged  with  the 
amount  advanced,  whether  he  will  have  it  so  or  not.  In  other  words,  tiie  amount 
of  his  advancement,  when  it  is  asct?rtained,  is  addetl  to  the  total  of  the  assets  of 
the  estate  of  tlie  intestate,  the  whole  sum  divided  by  the  number  of  distributees 
(after  the  widow's  portion  is  deducted,  if  there  be  one),  and  from  the  share  due 
the  advanced  distributee  the  amount  of  his  advancement  is  deducted,  and  he  is 
paid  the  remainder,  if  there  be  any.  Thus  he  is  forced  to  bring  into  hotchpot 
the  property  he  has  received  from  his  ancestor. 

^Cole  V.  Leake,  27  Miss.  767. 

*  Walker  v.  Brooks,  09  N.  C.  207. 

*  Powell  V.  Powell,  5  Dana,  16S;  Grattan  r.  Grattan,  18  111.  167.  In  Andrew  r. 
Hall,  15  Ala.  85.  90,  it  was  held  that  an  inAint's  pnardian  ad  litem  culd,  with  the 
consent  of  the  court,  bring  in  his  property.  A  judgment  of  distributi.>n  again>t 
a  minor  is  errone<Mis  without  the  appointment  of  a  gruirdian  ad  Utrm  :  Wilson  r. 
Wilson.  18  Ala.  176,  overruling  Parks  v.  Stonum,  8  Ala.  752,  and  Taylor  v.  Keese, 
4  Ala.  121. 


604 


Advancements. 


is  a  relinquishment  and  bar  of  all  claims  of  interest  as  a 
distributee  of  his  donor's  estate.^  The  relinquishment 
must  be  made  within  a  reasonable  time  after  the  death  of 
the  donor.^ 

608.  Kind  of  Property  to  be  Bought  in — Value. 
— It  would  be  preposterous  to  require  the  donee  to  bring 
in  the  original  property  he  had  received  by  way  of  ad- 
vancement, or  even  property  in  specie  ;  therefore  he  is 
only  required  to  bring  in  the  value  of  the  property  he 
received  from  the  donor.^ 

609.  Agreement  of  Distributee  with  other  Dis- 
tributees TO  Account  for  Property  Advanced. — An 
advanced  distributee  may  bind  himself  to  account  for 
property  advanced  him  by  agreeing  with  his  co-distribu- 
tees or  the  administrator  that  it  may  be  so  treated.  Thus 
where  it  was  found  that  the  personal  estate  was  insufficient 
to  pay  debts  ;  and  the  elder  children,  having  been  ad- 
vanced in  money  and  goods,  agreed  with  the  administrator 
in  writing,  to  account  for  the  advancement  made  to  them, 
to  save  the  real  estate  from  being  sold  for  the  payment  of 
debts,  and  to  do  justice  to  the  younger  children  who  had 
received  nothing  from  their  father,  the  agreement  was 
deemed  equitable  and  enforced.*  In  another  instance  the 
father  advanced  four  of  his  children  $1,200,  leaving  his 
four  remaining  children  unadvanced.  The  children  ad- 
vanced were  his  sureties,  and  he  was  otherwise  indebted 
to  them.  In  order  to  pay  his  debts  and  save  his  sureties 
from  loss,   he  conveyed  all  his  property  in  trust,  these 

» Taylor  v.  Reese,  4  Ala.  121.    See  Powell  v.  Powell,  5  Dana,  168. 

'Grattan  v.  Grattan,  18  111.  167.  In  Louisiana  refunding;  the  amount  of  the 
advancement  seems  to  be  compulsory:  Davis  v.  Davi«,  5  La.  Ann.  561 ;  O'Neal  v. 
Gates,  8  La.  Ann.  78 ;  Succession  of  Cucullii,  9  La.  Ann.  96. 

*  Ray  V.  Loper,  65  Mo.  470;  Grattan  v.  Grattan,  18  ill.  167. 

*  Smith  V.  Axtell,  Saxt.  (N.  J.)  494. 


Hotchpot.  605 

sureties  at  the  time  covenanting  with  the  other  four 
children  that  if  the  property  was  insufficient  to  pay  the 
debts  of  their  father,  and  also  to  make  them  equal  with 
themselves,  they  would  apportion  the  advancements 
they  had  received  so  as  to  make  all  the  children  of 
the  father  equal.  It  was  held  that  they  were  bound  by 
the  agreement,  the  property  remaining  at  the  close  of  the 
trust  not  being  sufficient  to  make  the  non-advanced  cliil- 
dren  equal  with  those  advanced.^ 

610.  Refusal  to  Come  in  First  Distribution  Does 
NOT  Bar  Kight  to  Come  in  and  Share  Second  Distri- 
bution.— A  refusal  of  an  advanced  distributee  to  bring 
his  share  into  hotchpot  on  the  first  division  does  not  bar 
him  from  bringing  it  on  a  second  or  other  division  and 
sharing  in  such  distribution  where  the  property  on  the 
second  distribution  is  the  land  of  the  intestate  freed  from 
the  widow's  dower  by  her  death.  Thus  after  a  widow's 
dower  had  been  assigned  her,  one  of  the  heirs  refused  to 
bring  in  his  share  on  a  division  of  the  other  two-thirds ; 
but  after  her  death,  upon  a  division  of  the  third  of  the 
land  she  had  held  a  life  estate  in,  he  was  permitted  to 
bring  in  his  advanced  property  and  to  share  in  the  prop- 
erty divided  on  the  second  division.^ 

611.  Estimating  Value  of  Advancement,  Tdie  of. 
— Shall  the  advanced   distributee  be  charged   with  the 

1  Bason  v.  Harden,  72  N.  C.  281.  If  a  party  concur  in  the  distribution, 
neither  he  nor  his  heirs  can  afterward  claim  that  tiiere  was  an  improper  division 
because  of  an  improper  reckoning  of  advancements:  Haden  v.  Haden,  7  J.  J. 
Mar.  168;  Nelson  v.  Bush,  9  Dana    104. 

2  Persinger  v.  Simmons,  25  Gratt.  23«!.  In  this  case  the  attempt  of  the  couit 
on  the  first  distribution  to  bar  the  children  refusing  to  come  in  from  any  furlher 
claim  was  held  not  to  accomplish  tliat  object.  To  same  effect  Knight  v.  Oliver, 
12  Gratt.  33. 

For  an  instance  where  tlie  amount  of  the  advancement,  as  found  by  the  court 
on  the  first  distribution  did  not  bar  it  in  a  second  distribution,  see  French  «. 
French,  4G  Vt.  357. 


606  Advancements. 

property  advanced  at  its  value  when  advanced,  or  wben 
the  intestate  dies,  or  when  the  final  distribution  of  the 
estate  is  made  ?  These  questions  are  usually  answered  by 
the  statutes  which  provided  that  the  advanced  distribu- 
tee shall  be  charged  with  the  value  of  the  property  as 
of  the  date  of  its  advancement.  This  is  eminently  pro- 
per ;  for  the  property,  especially  if  personalty,  might  be 
of  little  value  at  the  death  of  the  intestate  or  at  the  time 
of  the  final  distribution ;  and  it  would  be  manifestly  un- 
fair to  the  other  distributees  that  the  advanced  distributee 
might  have  the  use  of  property  for  many  years,  and  then 
be  required  to  account  only  f(;r  its  value  less  the  decrease 
in  value  from  wear  and  tear  and  usage.  Such  is  the 
equitable  rule,  also,  aside  from  any  statute.^     The  object 

'  Wilks  V.  Greer,  14  Ala.  437  ;  Turner  v.  Kelly,  67  Ala.  173;  Barber  v.  Taylor, 
9  Dana,  84;  Hook  v.  Hook,  13  B.  Mon.  526;  Stevenson  v.  Martin,  11  Bnsli,  4.<5 ; 
Boweles  v.  Wincliester,  13  Bus^i,  1 ;  Pigg  v.  Carroll,  89  111.  205;  Clark  r.  Willson, 
27  Md.  693;  Ray  v.  Loper,  Go  Mo.  470;  Dixon  v.  Marston,  64  N.  H.  433  ;  King 
r.  Worsley,  2  Hay,  ^'iG  (559) ;  Larab  v.  Carroll,  6  Ired.  L.  4;  Raiford  v.  Raiford, 
6  Ired.  Eq.  490;  Wills  v.  Cowper,  2  Ohio,  124;  House  v.  Woodward,  5  Coldw. 
196 ;  Oyster  v.  Oyster,  1  S.  &  R.  422  ;  Phillips  v.  Greeg,  10  Watts,  158  ;  Berthelot 
V.  Fitch  (La.),  10  So.  Rep.  867 ;  Kyle  v.  Conrad,  25  W.  Va.  760;  Knight  v.  Yar- 
borough,  4  Rand.  566  ;  Chinn  v.  Murray,  4  Gratt.,  p.  379 ;  Scoby  v.  Sweatt,  28  Tex. 
713;  Law  v.  Smith,  2  R.  I.  244;  Hudson  v.  Hudson,  3  Rand.  117;  Osgood 
V.  Breed,  17  Mass.  356;  Moore  v.  Burrow,  89  Tenn.  101 ;  Haynes  %\  Jones,  2  Head, 
373;  O'Neal  v.  Breecheen,  5  Baxt.  604;  Beckwith  r  Butler,  1  Wash   (Va.)  224. 

In  South  Carolina,  by  the  express  terms  of  the  statute,  tbe  value  of  the  ad- 
vanced portion  must  be  estimated  as  of  the  date  of  the  death  of  the  ancestor,  im- 
provements made  by  the  donee  being  excluded  :  M'Cavvi".  Blewit,  2  M'C.  Ch. 
90;  Ison  v.  Ison,  5  Rich.  Eq.  15  ;  McDougald  v.  King,  Bail.  Ch.  154  ;  Hughey  v. 
Eichelberger,  11  S.  C.  36. 

In  New  Hampshire  the  value  is  estimated  as  of  the  death  of  tlie  intestate. 
Thus  one  of  tw'>  heirs  was  advanced  $9,000.  After  paying  the  widow  and  debts 
there  was  left  $9,689.64  for  distribution.  The  intestate  died  May  13,  1883,  and 
the  estate  was  ready  for  distribution  December  14,1886.  The  court  decreed 
that  the  amount  due  the  nnadvanced  heir  was  to  be  estimated  as  of  the  death  of  tJie 
iiite-;tate;  that  is,  that  he  was  to  receive  a  sum  December  14,  1886,  which 
would  be  worth,  discounted  at  six  per  cent.,  May  13,  1883,  $9,000.  This  for 
the  reason  that  the  advanced  heir  had  had  the  income  of  his  $9,000,  while  the 
unadvanced  heir  had  not;  and  the  two  sluuld  be  put  on  as  near  an  equal  footing 
as  possible  :  Dixon  v.  Marston,  64  N.  H.  433. 


Hotchpot.  G07 

of  a  donor  in  advancing  a  child  is  that  the  donee  may 
enjoy  the  property  advanced  during  the  lifetime  of  the 
donor ;  therefore,  where  a  statute  declared  that  the  ad- 
vancement should  be  valued  as  of  the  date  when  made  ; 
and  the  advancement  consisted  of  an  estate  to  take  effect 
in  the  future,  it  was  estimated  according  to  its  value 
when  completed  by  enjoyment  thereof  by  the  donee.^  So 
where  a  father  insured  his  life  in  favor  of  his  daughter 
and  regularly  paid  the  premiums,  it  was  held  that  its 
value  must  be  estimated  at  the  time  of  the  father's  death, 
relation  being  had  to  its  situation  at  the  time  the  policy 
was  issued.  It  was  also  held  that  the  subsequent  annual 
payments  of  premiums  were  to  be  charged  without  interest 
as  an  advancement  of  such  money.^ 

612.  Value  of  Impekfect  Gift  which  is  Perfected 
AT  Later  Date. — If  the  gift  by  way  of  advancement  is  so 
imperfect  that  no  title  passes  at  the  time,  but  by  some  subse- 
quent act  of  the  donor  the  gift  is  made  complete,  then  the  ad- 

In  Georgia  tlie  value  affixed  in  a  memoiandtim  of  advancements  kept  by  the 
donor,  is,  prima  facie,  by  statute,  the  vahie  of  the  property  advanced:  Sims  r. 
Sims,  39  Ga.  108. 

'  Hook  V.  Hook,  13  B.  Mon.  52G  ;  Ford  v.  Ellingwood,  3  Met.  359;  Clark  r. 
Willson,  27  Md.  693.  (The  estate  was  "the  value  thereof  at  the  time  such  ad- 
vancement was  received").  For  a  leugluliy  discussion  of  the  question  see  Chinn 
V.  Murray,  4  Gratt.  348,  though  the  point  is  not  decided.  Wlien  donee  only  gets 
life  estate  with  remainder  over  to  his  children,  see  Brown  v.  Dortch,  12  lleisk. 
740. 

"  Rickenbacker  v.  Zimmerman,  10  S.  C.  110.  "Where  a  father  made  a  deed  of 
slaves  to  his  child,  reserving  a  life  estate  to  himself,  the  value  was  estimated  at 
date  of  his  death,  the  statute  providing  that  the  v;ilne  of  an  ndvancement  should 
be  estimated  "at  the  time  it  was  delivered:"  Wilks  v.  Greer,  14  Ala.  437. 
Where  the  gift  was  a  slave,  and  the  donee,  an  infant,  resided  with  his  father 
until  of  age,  and  then  left,  taking  the  slave,  the  value  was  estimated  as  of  the 
date  of  his  arriving  at  full  age:  Meadows  v.  Meadows,  11  Ircd.  L.  148  ;  Adams  r. 
Hayes,  2  Ired.  L.  361. 

If  there  are  two  distributions  of  the  estate,  one  by  will  and  the  other  by  the  law, 
and  the  donor  place  a  value  on  the  advancement,  the  donee  is  estopped  to  contro- 
vert the  value  so  far  as  he  claims  under  the  will :  Hook  v.  Hook,  13  B.  Mon. 
526. 


608  Advanceiiie7its. 

vancement  is  estimated  as  of  tlie  date  that  the  gift  is  per- 
fected. Such  was  held  the  case  wliere  a  parol  gift  of  land 
was  held  void,  but  which  was  subsequently  perfected  by 
the  execution  of  a  deed.^  Where  the  gift  of  land  was 
void,  but  the  son  having  sold  it,  the  father  made  the  deed, 
and  the  son  received  the  purchase-money,  the  son  was 
charged  with  the  amount  of  money  he  received.^  Yet 
when  the  son  took  possession  and  enjoyed  the  premises 
and  profits  thereof,  and  a  deed  was  executed  by  the  donor 
to  him  after  the  date  of  his  taking  possession,  the  value 
was  estimated  as  of  the  date  he  took  possession ;  and  this 
is  undoubtedly  a  fair  rule.^ 

613.  Value  Fixed  by  A¥ill. — If  the  donor  in  his 
will  fixes  a  value  on  the  property  advanced,  then  the 
value  thus  fixed  must  control,  especially  if  it  appears 
from  the  will  that  the  testator  was  attempting  to  make  a 
fair  division  of  his  property.*  If  the  will  refers  to  memo- 
randum or  an  account  of  the  testator  showing  what  prop- 
erty the  donee  has  been  advanced,  and  such  memorandum 
or  account  shows  the  value  fixed  upon  it  by  the  testator, 
then  the  value  as  thus  fixed  must  control  in  determining 
the  value  of  the  advancement  made  the  donee ;  but  if  the 
property  thus  advanced  was  worthless  at  the  time  of  the 
advancement,  it  would  seem  that  the  donee  may  show  that 
flict,  and  if  such  clearly  appears  to  be  the  case,  he  will 
not  be  charged  with  the  value  thus  fixed,  upon  the  ground 

^  Moore  v.  Burrow,  89  Tenn.  101  ;  Shiver  v.  Brock,  2  Jones'  Eq.  137  ;  Haynes 
V.  Jones,  2  Head,  371 ;  Hnghey  v.  Kiclielberger,  11  S.  C.  36  ;  O'Neal  v.  Breeclieen, 
5  B;ixt.  604  The  same  is  true  of  personal  property:  Meadows  r.  Meadows,  11 
Ired.  L.  148;  Adams  v.  Hayes,  2  Ired.  L.  361 ;  Paryear  v.  Cabell,  24  Grait.  260, 

2  Barber  v.  Taylor,  9  Dana,  84;  see  Hook  v.  Hook,  13  B.  Mon.  526  ;  Stevenson 
V  Martin,  11  Bush,  485;  Bowles  d.  Wincliester,  13  Bush,  1. 

spijrg??.  Carroll,  89  111.  206. 

*Ndson  V.  Nelson,  7  B.  Mon.  672;  Hook  v.  Hook,  13  B.  M  n.  526 ;  Grigsby  v. 
Wilkinson,  9  Bush,  91. 


Hotchpoc.  009 

that  the  donor  was  relying  upon  a  thing  not  in  existence, 
and  would  not  so  charged  the  donee  if  he  had  known  the 
actual  facts  concerning  the  supposed  property  attempted 
to  be  thus  charged  to  him.^ 

614.  Charging  Donee  with  Interest  on  Property 
Advanced. — Interest  cannot  be  charged  the  donee  before 
the  donor's  death  on  the  projierty  advanced  ;  and  this 
rule  is  manifestly  fair ;  for  no  one  would  care  to  take  tlie 
property  for  the  uncertain  length  of  time  of  the  donor's 
life,  and  be  chargeable  in  the  final  distribution  of  his 
estate  with  interest  from  the  time  of  the  reception  of  such 
property  until  the  final  distribution  thereof.  Especially 
would  this  be  true  if  the  property  was  non-productive."^ 
Interest  on  a  debt  due  from  the  donee  to  the  donor,  and 
which  by  will  is  turned  into  an  advancement,  will  not  be 
charged.^     But  interest  is  charged  on  the  value  of  the 

^  Marsh  v.  Gilbert,  2  Redf.  465.  It  cannot  be  said  that  this  case  is  an  authority 
for  ail  that  is  stated  in  the  text,  but  reason  and  common  sense  seems  to  be  with 
the  statements  in  the  text.  The  statement  in  the  text  is  supported  b_v  tiie  lan- 
guage of  the  court  in  Nelson  v.  Nelson,  7  B.  Mon.  672. 

If  the  will  treats  a  debt  as  part  of  the  assets  of  the  estate,  the  heir  owing  it 
cannot  repudiate  the  debt  and  claim  the  legacy  given  him  :  "Williams  v.  AVilliaMis, 
15  Lea,  438  ;  Cannon  v.  Apperson,  14  Lea,  553. 

'Fowler  v.  Roundtree,  10  Fla.  299;  Harris  v.  Allen,  18  Ga.  177;  Boyd  v. 
White,  32  Ga  530  ;  Manning  v.  Thurston,  59  Md.  218  ;  Osgood  v.  Breed,  17  Mass. 
356;  Hall  v.  Davis,  3  Pick.  450;  Black  v.  Whitall,  1  Stock.  (N.  J.)  573;  Wan- 
maker  t;.  Van  Buskirk,  Sax.  (N.  J.)  685;  Patterson's  Appeal,  128  Pa.  St.  269 ; 
Hudson  v.  Hudson,  3  Rand.  117  ;  Wheleu's  Appeal,  70  Pa.  St.  410. 

3  Patterson's  Appeal,  128  Pa.  St.  269  ;  Green  v.  Howell,  6  W.  &  S.  203  ;  Krebs 
V.  Krebs,  35  Ala.  293.  Even  though  the  debt  is  due  from  the  son-in-law,  and  the 
amount  due  is  taken  as  an  advancement  to  the  daughter,  no  inlerest  is  chargeable  : 
Grim's  Appeal,  105  Pa.  St.  375;  Green  v.  Howell,  6  W.  &  S.  203.  The  testator 
may  direct  in  his  will  that  an  advancement  is  to  draw  intere-t,  and  indicate  from 
what  date  it  shall  begin  to  run  :  Patterson's  Estate,  6  Pa.  C.  C.  443  ;  S.  C.  45  Leg. 
Int.  474 ;  Treadwell  v.  Cordis,  5  Grey,  341.  Where  a  testator  in  his  will  dated 
1852,  forgave  all  his  children  all  advancements,  loan«  and  debts  due  from  any 
of  them  "except  the  capital  in  the  hands  of  my  son  Daniel  since  he  entered  into 
his  present  business  of  broker,  which  is  to  be  regarded  by  my  executors  as  |  ai  i 
of  my  estate;"  and  in  1854  took  from  his  son  Daniel  a  bond  for  $52,488,  being 
39 


610  Advancements. 

advancements  from  the  date  of  the  intestate's  death. ^ 
In  a  few  States  interest  does   not   begin  to   run  until 

the  amount  with  interest  of  various  sums  of  money  he  received  from  his  father 
from  time  to  time,  and  used  in  his  business ;  and  by  a  codicil,  dated  in  1857,  repub- 
lished and  ratified  his  will ;  it  was  held  that  the  word  "  capital"  was  not  equiva- 
lent to  "  debt;"  that  his  son  could  not  be  charged  with  the  amount  of  the  bond 
and  interest;  that  his  liability  to  the  estate  was  to  be  meabured  by  the  amount 
lent  to  him  by  the  testator  as  capital  in  his  business,  and  that  this  sum  should  be 
added  as  part  of  the  estate  as  of  the  time  of  the  testator's  death,  without  interest : 
Hutchinson's  Appeal,  47  Pa.  St.  84;  see  Wilkins  v.  Wilkins,  43  IS'.  J.  Eq.  695. 

In  order  to  equalize  the  distribution  of  estates  under  a  will,  interest  may  be 
charged  on  advancements,  if  necessary  to  secure  an  equal  distribution  :  Kichols 
V.  CofSn,  4  Allen,  27;  Monks  v.  Monks,  7  Allen,  401 ;  Cummings  v.  Bramhall,  120 
Mass.  552 ;  Wilkins  v.  Wilkins,  43  N.  J.  Eq.  595. 

A  testator  directed  his  executors  "  to  ascertain  how  much  has  been  advanced 
by  me  to  each  and  every  of  ray  children,  and  how  much  each  of  them  may  be 
indebted  to  me  on  bond,  note,  book-account,  or  otherwise,  and  to  so  divide  the 
residue  of  my  proj^erty  among  my  said  children  as  that  each  may  have  an  equal 
share  of  my  estate — that  is,  that  the  moneys  so  advanced  to  any  of  my  children, 
and  for  which  they  shall  be  indebted  to  me  as  aforesaid,  be  counted  as  so  much 
paid  on  account  of  the  share  of  such  child  in  my  estate."  The  testator  at  his 
death  held  notes  of  each  of  his  sons,  a  book-account  against  one,  and  a  bond  and 
warrant  of  his  son-in-law  never  entered  up.  On  one  of  the  notes  he  had  received 
a  year's  interest  eight  years  before  the  date  of  the  will ;  on  the  others  no  interest 
was  ever  paid.  It  was  held  that  the  will  converted  the  notes,  bonds,  and  book- 
acc  Hint  from  debts  into  advancements,  and  that  no  interest  was  chargeable  on 
them :  Green  v.  Howell,  6  W.  &  S.  203. 

Advancements  made  by  trustees,  pursuant  to  the  terms  of  a  will,  are  not 
chargeable  with  interest  unless  the  will  so  directs :  Hosmer  v.  Sturges,  31  Ohio 
St.  657. 

1  McDougald  v.  King,  Bail.  Ch,  154  ;  Youngblood  v.  Norton,  1  Strobh.  Eq.  122 ; 
Glenn,  Ex  parte,  20  S.  C.  64;  Kyle  v.  Conrad,  25  W.  Va.  760;  Moore  v.  Burrow, 
89  Tenn.  101;  Roberson  v.  Nail,  85  Tenn.  124;  Williams  v.  Williams,  15 
Lea,  438;  Johnson  v.  Patterson,  13  Lea,  626,  657;  Steele  v.  Frierson,  85 
Tenn.  430. 

Wiiere  a  father  made  adranceraents  to  his  married  daughters,  and  took  from 
them  receipts  bearing  interest,  interest  was  charged  only, from  the  date  of  his 
death,  on  the  ground  that  they  were  not  bound  by  their  contract  to  account  for 
interest  during  liis  life  and  were  chargeable  only  as  the  law  fixed  their  liability: 
Roberson  v.  Nail,  85  Tenn.  124. 

In  Pennsylvania  advancements  to  all  the  heirs  are  settled  as  of  the  same  time, 
after  the  death  of  the  testator ;  and  the  heirs  last  paid  are  entitled  to  interest 
from  the  time  when  the  other  heirs  received  the  balances  due  them  respectively : 
Yundt's  Appeal,  13  Pa.  St.  575  ;  see  Miller's  Appeal,  31  Pa.  St.  337. 

In  Georgia,  at  one  time,  interest  was  charged  only  froiu  the  time  the  advance- 
ment was  brought  into  hotchpot:  Harris  v.  Allen,  18  Ga.  177. 


Hotchpot.  611 

the  period  within  which  the  administrator  has  to  make  a 
settlement  has  expired.^ 

615.  Rents  and  Profits — Increased  Value. — The 
rents  and  profits  are  the  donee's,  and  they  cannot  be 
charged  to  him  as  a  part  of  his  advancement;"  nor 
can  the  accrued  value  of  the  estate  given  be  charged 
him.^ 

616.  Improvements  Erected  by  Donee. — Improve- 
ments erected  by  the  donee  on  the  land  given  cannot  be 

1  Watson's  Estate,  2  W.  N.  Cas.  113 ;  S.  C  32  Leg.  Int.  404;  Bovd  v.  Wliite,  32 
Ga.  530  ;  Thompson's  Estate,  8  W.  N.  Cas.  J6;  Ford's  Estate,  28  Leg.  Int.  221  ; 
S.C.  11  Phila.  97  ;  Manner  v.  Winbnrn,  7  Ired.  Eq.  142. 

Where  a  widow  under  her  liusband's  will  advanced  all  his  cliildren,  but  one 
of  them  much  Lss  than  the  others,  interest  was  charged  to  each  legatee  on 
tlie  excess  of  tlie  advancements  made  to  him  from  the  death  of  the  widow 
until  the  division :  Cabell  v.  Piiryear,  27  Gratt.  902.  The  same  rule  was  followed 
in  Barrett  v.  Morriss,  33  Gratt.  273. 

If  an  heir  bring  in  his  advancement,  altiioiigh  unduly  advanced,  and  he  will 
receive  nothing  back,  he  is  slill  cliargeable  with  interest  from  the  date  of  the 
death  of  the  ancestor  :   McDougald  v.  King,  Bail.  Ch.  154. 

Hson  V.  Ison,  5  Rich.  Eq.  15;  Kyle  v.  Conrad,  25  W.  Va.  760;  Williams  v. 
Stonestreet,  3  Rand.  559.  Where  a  child,  at  the  request  of  its  parent,  took  pos- 
session of  land  and  cultivated  it  for  his  own  benefit,  the  court  refused  to 
charge  him  with  the  rents  and  profits  he  had  received,  for  the  reason  that  Jiis 
possession  was  precarious,  and  could  not  be  considered  as  an  advancement  toward 
a  permanent  advancement  in  life :  Christian  v.  Coleman,  3  Leigh,  30.  But  where 
a  father  permitted  a  child  to  rent  out  his  (the  father's)  land,  and  to  receive  llie 
rents  and  profits,  the  child  was  charged  with  such  rents  and  profits  as  an  advance- 
ment: Williams  v.  Stonestreet,  3  Rand.  559.  Rents  may  be  charged  wiien  by  tiic 
terms  of  the  will  it  is  necessary  to  equalize  the  shares:  Jordan  v.  Miller,  47  Ga. 
346;  Wakefield  v.  Gilliland,  13  Ky.  L.  Rep.  845.  In  Louisiana  the  donee  is 
charged  with  rent  from  the  time  of  tlie  opening  of  the  succession,  but  he  is  reim- 
bursed for  the  taxes  and  insurance  lie  has  paid  out:  Berthelot  v.  Fitch,  10  So. 
Rep.  867  (La.). 

^Beckwith  v.  Butler,  1  Wash.  (Va.)  224  (the  slave  given  had  a  child,  and  it 
was  decreed  to  be  the  donee's  without  charge  to  him  as  an  advancement) ;  Walton 
V.  Walton,  7  Ired.  Eq.  138  (increase  of  slave) ;  Puryear  v.  Cabell,  24  Gratt.  260; 
M'Caw  t;.  Blewit,  2  McC.  Ch.  90  (by  statute).  Where  a  life  estate  was  reserved 
to  the  donor,  the  children  of  the  slave,  born  after  the  gift,  belonged  to  the  donee: 
Wilks  V.  Greer,  14  Ala.  437  ;  Burton  v.  Dickinson,  3  Yerg.  112. 


612  Advancements. 

charged  to  him  in  estimating  his  advancement.     It  would 
be  manifestly  unfair  to  do  so.^ 

617.  Property  Wasted  or  Destroyed  —  Slaves 
Emancipated. — If  the  donee  waste  the  property  given 
him,  before  the  donor's  death,  or  it  is  destroyed,  he 
cannot  claim  that  it  shall  not  be  taken  into  account  in  the 
final  distribution,  even  though  it  be  destroyed  the  next 
day  after  title  is  fully  vested  in  him.  Its  loss  is  his  and 
not  the  donor's  nor  his  co-distributee.^  Even  though  the 
property  is  destroyed  by  operation  of  law,  yet  the  donee 
is  chargeable  with  its  value  as  of  the  date  the  gift  is 
made.  This  is  well  illustrated  by  an  advancement  of 
slaves  which  were  emancipated,  before  the  final  distribu- 
tion of  the  estate.  In  such  instances  the  donee  is  charge- 
able with  their  value.^  But  if  the  donor  has  died  after 
the  emancipation  of  the  slave,  then  it  is  not  to  be  con- 
sidered an  advancement.* 

618.  Effect  on  Title  to  Property  Advanced  by 
Bringing  into  Hotchpot. — By  bringing  into  hotchpot 

^Powell  V.  Powell,  9  Dana,  12;  M'Caw  i;.  Blevvit,  2  McC  Ch.  90  (by  statute). 
If  the  donee  has  received  no  title  to  the  land  given,  he  will  be  allowed  for  the 
improvements  he  has  put  on  the  land  during  his  occupancy  of  it:  Ware  i'.  Welsh, 
10  Mart.  (La.)  430. 

'^  Fleming's  Appeal,  5  Phila.  351. 

3  Banks  V.  Shannonhouse,  Phil.  (N.  C.)  L.  284;  Puryear  v.  Cabell,  24  Gratt. 
260;  Kelley  v.  McCallum,  83  N.  C.  5G3;  McLure  v.  Steele,  14  Rich.  Eq.  105; 
Meyer's  Succession,  11  So.  Rep.  532;  West  v.  Jones,  85  Va.  616.  If  the  slave 
was  a  loan,  of  course  it  cannot  be  charged  as  an  advancement,  though  the  value 
of  its  services  may  be  :  Hanner  v.  Winburn,  7  Ired.  Eq.  142. 

*Hughey  v.  Eickellberger,  11  S.  C.  36;  Wilson  v.  Kelly,  21  S.  C.  535;  Ex 
■parte  Glenn,  20  S.  C.  64. 

Where  three  heirs  were  advanced  in  slaves  in  1855, 1859,  and  1861,  respectively, 
it  was  held  proper,  in  allotting  slaves  in  December,  1864,  to  equalize  an  heir  who 
liad  received  none,  to  allot  them  asof  their  value  in  1861,  the  subsequent  emancipa- 
tion causing  a  loss  common  to  all  the  heirs:  West  v.  Jones,  85  Va.  616  (1889). 

In  Louisiana  if  the  slave  was  emancipated  before  the  opening  of  the  succession, 
the  donee  cannot  be  charged  with  its  value  as  an  advancement :  Succession  of 
Guillory,  29  La.  Ann.  495. 


Hotchpot.  Glo 

the  property  advanced  the  donee  does  not  relinquish  liis 
title  to  it ;  but  the  title  still  remains  in  him,  and  only  the 
value  of  such  property  is  considered/  If  the  distributee 
advanced  brings  the  property  advanced  into  hotchpot, 
and  it  is  then  found  that  he  has  more  property  than,  by 
counting  his  property  a  part  of  the  assets  of  the  estate, 
each  distributee  is  entitled  to,  yet  this  will  not  effect  his 
title  to  the  overplus,  unless  he  has  executed  a  conveyance 
to  his  co-distributees  or  delivered  to  them  such  possession 
of  the  overplus  as  will  render  them  on  an  equality  with 
him.^ 

619.  Statute  of  Limitations. — The  advanced  distri- 
butee cannot  plead  the  statute  of  limitations  as  an  excuse 
for  not  bringing  in  the  property  advanced  him,  and  in 
this  way  keep  such  property  and  share  equally  in  the  re- 
mainder of  the  assets  of  the  intestate's  estate.^  And  this 
is  true  even  if  the  advancement  consists  of  a  debt  owed 
by  the  donee  to  the  donor  and  which  could  not  be  col- 
lected because  of  the  statute  having  run  against  it.* 

620.  Not  a  Part  of  Assets  of  Estate. — Property 
advanced,  just  like  the  case  of  a  gift,  is  not  a  part  of  tli.- 
estate  of  the  intestate  ;  and  the  administrator  is  not  en- 
titled to  the  possession  of  it.^ 

'  Jackson  v.  Jackson,  23  Miss.  674  ;  Elliott's  Estate,  98  Mo.  379,  384. 

==  We  know  of  no  case  on  this  point,  but  the  above  statement  is  certainly  rea- 
sonable. Perhaps,  the  court  in  awarding  a  distribution,  in  such  a  circumstance, 
would  award  judgment  against  the  over-advanced  distributee  in  favor  of  the  other 
distributees  for  the  amount  severally  due  each. 

3  Ackerman  v.  Ackerman,  24  N.  J.  Ch.  315 ;  Marston  v.  Lord,  65  N.  H.  4 ;  Hughes's 
Appeal,  57  Pa.  St.  179. 

^Bird's  Estate,  2  Pars.  (Pa.)  168.  Where  a  father  purchased  land  in  the 
name  of  his  infant  son,  so  as  to  make  it  an  advancement,  and  then  look  po- 
session  of  the  land  as  his  own;  it  was  held  that  the  father  could  not^claim 
title  by  reason  of  his  adverse  claim  and  possession  :  White  r.  White,  o2  Ark. 
188. 

*  French  v.  Davis,  33  Miss.  167 ;  Haxton  v.  McClaren,  132  Ind.  235. 


614  Advancements. 

621.  How  Question  of  Advancement  Litigated — 
Partition. — The  question  of  udvaiicemerit  may  be  liti- 
gated upon  petition  to  the  probate  court  having  charge  of 
the  estate  of  the  intestate.^  So  it  may  be  litigated  where 
one  distributee  brings  suit  against  another  for  having  re- 
ceived, since  the  intestate's  death,  more  than  his  share  of 
the  estate.  So,  too,  where  the  advancement  may  consist 
of  both  real  and  personal  property,  modern  statutes  per- 
mit the  question  of  advancement  to  be  raised  in  a  suit  for 
the  partition  of  the  real  estate  of  the  intestate.^  If  the 
advancement  of  the  donee  has  been  of  jDcrsonal  property, 
and  there  has  been  a  distribution  of  the  personal  assets 
of  the  estate  without  such  advancement  having  been  taken 
into  consideration,  or  if  there  are  no  assets  of  the  estate, 
or  not  enough  to  equalize  the  heirs,  then  the  question  of 
advancements  must  be  raised  in  the  action  of  partition  ; 
for  the  judgment  of  partition  will  preclude  the  un- 
advanced  heirs  from  afterward  raising  the  question  or 
bringing  an  action  against  the  advanced  heir  to  call  him 
to  an  account.  The  same  is  true  of  an  action  for  distri- 
bution ;  if  the  question  of  advancement  is  not  raised  and 
litigated,  and  there  is  no  real  estate  subject  to  an  action 
for  partition,  the  unadvanced  heirs  will  be  barred  from 
afterward  bringing  forward  the  question  of  advancement.'^ 

'Smith  V.  Smith,  21  Ala.  761  ;  Andrews  v.  Hall,  15  Ala.  85  ;  Wilson  r.  Wilson, 
18  Ala.  176. 

2  Hobart  v.  Hobart,  58  Barb.  296  ;  Green  v.  Walker,  99  Mo.  68  ;  New  v.  New, 
127  Ind.  576;  Melvin  v.  Billiard,  82  N.  C  33;  Foltz  v.  West,  103  Ind.  404  ;  Ben- 
oit  V.  Benoit,  8  La.  230;  Scott  v.  Harris,  127  Ind.  520;  White  v.  White,  41 
Kan.  556  ;  Ramsey  v.  Abrams,  58  la.  512.  Contra,  Myers  v.  Warner,  18  Ohio, 
519. 

If  an  heir  is  indebted  to  the  intestate  his  indebtedness  may  be  considered  as  an 
advancement  in  an  action  of  partition  :  New  v.  New,  127  Ind.  576. 

3  Blancliard  v.  Commonwealth,  6  Watts,  309  ;  .see  Carlisle  v.  Green,  19  S.  W. 
Rep.  9"J5,  and  Nonis  v.  Norris,  3  Ind.  App.  500. 

Usually  tiie  case  is  tried  by  ihe  court,  but  often  statutes  provide  for  juries: 
Gaillard  v.  Duke,  57  Ala.  619. 


Hotchpot.  615 

622.  Competency  of  Advanced  Distributee  to  be 
A  Witness. — In  an  action  of  partition  or  in  a  suit  for 
distribution,  the  donee  or  advanced  heir,  under  the  usual 
statute  concerning  the  competency  of  witnesses,  is  not 
competent  as  a  witness  to  prove  the  declarations  of  the 
donor  or  intestate.^ 

If  the  party  bringing  a  suit  for  distribnlion  admit  in  his  bill  that  he  Las  been 
advanced,  lie  must  aver  a  willingness  to  bring  the  advanced  property  into  hotch- 
pot :  Tison  v.  Tison,  12  Ga.  208  ;  S.  C.  14  Ga.  167. 

Where  a  testator  charged  his  real  estate  with  the  paymentof  his  debts,  it  was  held 
that  advancements  are  not  to  be  considered  in  fixing  the  proportion  of  the  debts 
wliich  each  devisee  was  to  pay  :  Gaw  v.  Huffman,  12  Gratt.  628. 

An  advancement  made  to  a  daughter  cannot  be  offset  by  a  claim  held  by  her 
husband  against  her  father:  Adair  v.  Hare,  73  Tex.  273;  Seagrist's  Appeal,  10 
Pa.  St.  424. 

1  Wolfe  V.  Kable,  107  Ind.  565  ;  Dille  v.  Webb,  61  Ind.  85  ;  Comer  v.  Come-,  119 
111.  170,  distinguishing  Pigg  v.  Carroll,  89  111.  205.  But  contra,  Graves  v.  Sped- 
den,  46  Md.  527  ;  Williams  v.  McDowell,  54  Ga.  222. 

It  has  been  held  tliat  the  widow  of  the  intestate  may  testify  what  her  husband 
told  her  about  certain  property  being  an  advancement  when  such  advancement 
does  not  affect  her  distributive  share,  and  no  objection  is  raised  that  the  testimony 
relates  to  confidential  communications:  Scott  v.  Harris,  127  Ind.  520. 

If  the  donee  is  the  executor  or  administrator,  it  may  be  shown  that  he  in- 
cluded the  advanced  property  in  his  inventory  of  the  assets  of  the  estate;  and 
he  may  then  explain  why  he  did  it :  Williams  v.  McDowell,  54  Ga.  222. 


APPENDIX. 

STATUTE    OF    DISTRIBUTIONS. 

AN  ACT  FOR  THE  BETTER  SETTLEMENT  OF  INTESTATE's 

ESTATES. 

Be  it  enacted  by  the  King's  most  excellent  Majesty,  with 
the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  the  commons  in  this  present  Parliament  assembled,  and 
by  the  authority  of  the  same,  That  all  ordinaries,  as  well  as 
the  judges  of  the  prerogative  courts  of  Canterbury  and 
York  for  the  time  being,  as  all  other  ordinaries  and 
ecclesiastical  judges,  and  every  of  them,  having  power  to 
commit  administration  of  the  goods  of  j)ersons  dying  in- 
testate, shall  and  may  ujDon  their  respective  granting  and 
committing  of  administration  of  the  goods  of  persons 
dying  intestate,  after  the  first  day  of  June,  one  thousand 
six  hundred  seventy  and  one,  of  the  respective  person  or 
persons  to  whom  any  administration  is  to  be  committed, 
take  sufficient  bonds  with  two  or  more  able  sureties,  re- 
spect being  had  to  the  value  of  the  estate,  in  the  name  of 
the  ordinary,  with  the  condition  in  form  and  manner  fol- 
lowing, mutatis  mutandis,  viz. : 

II.  The  condition  of  this  obligation  is  such.  That  if  the 
within  bounden  A  B,  administrator  of  all  and  singular 
the  goods,  chattels,  and  credits  of  C  D,  deceased,  do  make 
and  cause  to  be  made,  a  true  and  perfect  inventory  of  all 
and  singular  the  goods  and  chattels  and  credits  of  the 
said  deceased,  which  have  or  shall  come  to  the  hands  and 
possession  of  any  other  person  or  persons  for  him,  and  the 
same  so  made  do  exhibit  or  cause  to  be  exhibited  into  the 
616 


A'p'pendlx.  617 

registry  of  court,  at  or  before  the  day 

of  next  ensuing;   (2)  and  the  same  goods, 

chattels,  and  credits,  and  all  other  goods,  chattels,  and 
credits  of  the  said  deceased  at  the  time  of  his  death, 
which  at  any  time  after  shall  come  to  the  hands  or  pos- 
session of  the  said  A  B  or  into  the  hands  and  possession 
of  any  other  person  or  persons  for  him,  do  well  and  truly 
administer  according  to  law ;  (3)  and  further  do  make  or 
cause  to  be  made,  a  true  and  just  account  of  his  said  ad- 
ministration, at  or  before  the  day  of 
and  all  the  rest  and  residue  of  the  said  goods,  chattels,  and 
credits  which  shall  be  found  remaining  upon  the  said  ad- 
ministrator's account,  the  same  being  first  examined  and 
allowed  of  by  the  judge  or  judges  for  the  time  being  of 
the  said  court,  shall  deliver  and  pay  unto  such  person  or 
persons  respectively,  as  the  said  judge  or  judges  by  his  or 
their  decree  or  sentence,  pursuant  to  the  true  intent  and 
meaning  of  this  act,  shall  limit  and  appoint.  (4)  And  if 
it  shall  hereafter  appear.  That  any  last  will  and  testament 
was  made  by  the  said  deceased,  and  the  executor  or  ex- 
ecutors therein  named  do  exhibit  the  same  into  the  said 
court,  making  request  to  have  it  allowed  and  approved 
accordingly,  if  the  said  A  B  within  bounden,  being  there- 
unto required,  do  render  and  deliver  the  said  letters  of 
administration  (approbation  of  such  testament  being  first 
had  and  made)  in  the  said  court ;  then  this  obligation  to 
be  void  and  of  none  effect,  or  else  to  remain  in  full  force 
and  virtue. 

III.  Which  bonds  are  hereby  declared  and  enacted  to 
be  good  to  all  intents  and  purposes,  and  pleadable  in  any 
courts  of  justice  ;  (2)  and  also  that  the  said  ordinaries 
and  judges  respectively,  shall  and  may,  and  are  enabled 
to  proceed  and  call  such  administrators  to  account,  for 
and  touching  the  goods  of  any  person  dying  intestate ; 


618  Ajipendix. 

(3)  and  upon  hearing  and  due  consideration  thereof,  to 
order  and  make  just  and  equal  distribution  of  what  re- 
maineth  clear  (after  all  debts,  funerals,  and  just  expenses 
of  every  sort  first  allowed  and  deducted)  amongst  the  wife 
and  children,  or  children's  children,  if  any  such  be,  or 
otherwise  to  the  next  of  kindred  to  the  dead  person  in 
equal  degree,  or  legally  representing  their  stocks  'pro  fuo 
cuique,  jure,  according  to  the  laws  in  such  cases,  and  the 
rules  and  limitation  hereafter  set  down ;  and  the  same 
distributions  to  decree  and  settle,  and  to  compel  such 
administrators  to  observe  and  2:)ay  the  same,  by  the  due 
course  of  his  Majesty's  ecclesiastical  laws ;  (4)  saving  to 
every  one,  supposing  him  or  themselves  aggrieved,  their 
right  of  appeal  as  was  always  in  such  cases  used. 

IV.  Provided,  That  this  act,  or  anything  herein  con- 
tained, shall  not  always  prejudice  or  hinder  the  customs 
observed  within  the  city  of  London  or  within  the  prov- 
ince of  York,  or  other  places,  having  known  and  received 
customs  peculiar  to  them,  but  that  the  same  customs  may 
be  observed  as  formerly  ;  anything  herein  contained  to 
the  contrary  notwithstanding. 

V.  Provided  always,  and  be  it  enacted  by  the  authority 
aforesaid,  that  all  ordinaries  and  every  other  person  who 
by  this  act  is  enabled  to  make  distribution  of  the  surplus- 
age of  the  estate  of  any  person  dying  intestate,  shall  dis- 
tribute the  whole  surplusage  of  such  estate  or  estates  in 
manner  and  form  following :  that  is  to  say,  (2)  one-third 
part  of  the  said  surplusage  to  the  wife  of  the  intestate, 
and  all  the  residue  by  equal  portions,  to  and  amongst  the 
children  of  such  persons  dying  intestate,  and  such  per- 
sons as  legally  represent  such  children,  in  case  any  of  the 
said  children  be  then  dead,  other  than  such  child  or  chil- 
dren (not  being  heir-at-law)  who  shall  have  any  estate 
by  the  settlement  of  the  intestate,  or  shall  be  advanced 


Aj>pen(llx.  610 

by  the  intestate  in  his  lifetime,  by  portion  or  portions 
equal  to  the  share  which  shall  by  such  distribution  be 
allotted  to  the  other  children  to  whom  such  distribution 
is  to  be  made  ;  (3)  and  in  case  any  child,  other  than  the 
heir-at-law,  who  shall  have  any  estate  by  settlement  from 
the  said  intestate,  or  shall  be  advanced  by  the  said  in- 
testate in  his  lifetime  by  portion  not  equal  to  the  share 
which  shall  be  due  to  the  other  children  by  such  distri- 
bution as  aforesaid ;  then  so  much  of  the  surplusage  of 
the  estate  of  such  intestate,  to  be  distributed  to  such  child 
or  children  as  shall  have  any  land  by  settlement  from 
the  intestate,  or  were  advanced  in  the  lifetime  of  the  in- 
testate, as  shall  make  the  estate  of  all  the  said  children  to 
be  equal  as  near  as  can  be  estimated ;  (4)  but  the  heir-at- 
law,  notwithstanding  any  land  that  he  shall  have  by 
descent  or  otherwise  from  the  intestate,  is  to  have  an 
equal  part  in  the  distribution  with  the  rest  of  the  chil- 
dren, without  any  consideration  of  the  value  of  the  land 
which  he  hath  by  descent,  or  otherwise  from  the  in- 
testate. 

VI.  And  in  case  there  be  no  children  nor  any  legal 
representatives  of  them,  then  one  moiety  of  the  said  estate 
to  be  allotted  to  the  wife  of  the  intestate,  the  residue  of 
the  said  estate  to  be  distributed  equally  to  every  of  the 
next  of  kindred  of  the  intestate,  who  are  in  equal  degree 
and  those  who  legally  represent  them. 

VII.  Provided,  That  there  be  no  representations  ad- 
mitted among  collaterals  after  brothers'  and  sisters'  chil- 
dren ;  (2)  and  in  case  there  be  no  wife  then  all  the  said 
estate  to  be  distributed  equally  to  and  amongst  the  chil- 
dren ;  (3)  and  in  case  there  be  no  child,  then  the  next  of 
kindred  in  equal  degree  of  or  unto  the  intestate,  and  their 
legal  representatives  as  aforesaid,  and  in  no  other  manner 
whatsoever. 


1 


620 


Appendix. 


VIII.  Provided  also,  and  be  it  likewise  enacted  by  the 
authority  aforesaid,  To  the  end  that  a  due  regard  be  had 
to  creditors,  that  no  such  distribution  of  the  goods  of  any 
person  dying  intestate  be  made  till  after  one  year  be  fully 
expired  after  the  intestate's  death  ;  (2)  and  that  such  and 
every  one  to  whom  any  distribution  and  share  shall  be 
allotted,  shall  give  bond  with  sufficient  sureties  in  the 
said  courts,  that  if  any  debt  or  debts  truly  owing  to  the 
intestate  shall  be  afterward  sued  for  and  recovered,  or 
otherwise  duly  made  to  appear ;  that  then  and  in  every 
such  case  he  or  she  shall  respectively  refund  and  pay 
back  to  the  administrator  his  or  her  ratable  part  of  that 
debt  or  debts,  and  of  the  costs  of  suit  and  charges  of  the 
administrator  by  reason  of  such  debt,  out  of  the  part  and 
share  so  as  aforesaid  allotted  to  him  or  her,  thereby  to 
enable  the  said  administrator  to  pay  and  satisfy  the  said 
debt  or  debts  so  discovered  after  the  distribution  made  as 
aforesaid. 

IX.  Provided  always,  and  it  be  enacted  by  the  author- 
ity aforesaid,  That  in  all  cases  where  the  ordinary  hath 
used,  heretofore,  to  grant  administration  cum  testamento 
annexo,  he  shall  continue  so  to  do,  and  the  will  of  the 
deceased  in  such  testament  expressed  shall  be  performed 
and  observed  in  such  manner  as  it  should  have  been  if 
this  act  had  never  been  made. 

X.  Provided  also,  That  this  act  shall  continue  in  force 
for  seven  years,  and  from  thence  to  the  end  of  the  next 
session  of  Parliament  and  no  longer.  29  Car.  2,  c.  3,  s. 
25 ;  30  Car.  2,  stat.  1,  c.  6,  made  perpetual  by  I  Jac.  2, 
c.  17,  s.  5. 


TABLE  OP  CASES  CITED. 


Abbott  V.  Tenney,  18  N.  H.  109 

241,  468 
Acker  v.   Phoenix,  4  Paige,  305  422 
Ackerman  v.  Ackerman,  24  N.  J. 
Eq.  315,  affirmed  lb.  585 

386,  403,  404,  613 
V.    Fisher,    57    Pa.    St.    457 

400,  402,  403 

Adair  v.  Hare,  73  Tex.  273  615 

Adam's  Estate,  35  Pa.  L.  Jr.  285    542 

Adams  v.  Adams,  22  Vt.  50     521,  590 

V.    Brackett,    5    Met.     280 

49  51  353 
V.    Hayes,   2    Ired.    L.    36l' 

12,  117,  127,  607,  608 
V.  Lansing,  17  Cal.  629  227 

V.  Lopdell,  25  L.  R.  Ir.  311  419 
V.  McMichael,  37  Ala.  432  182 
V.  Nicholas,  1  Miles,  90  36 

Adamson  v.  Lamb,  3  Blackf.  446 

383,  388 
Aden    v.   Aden,    16     Lea,    453 

519,  553,  590 
Ahearne    v.     Hogan,    1     Drury 

(Irish),  310  457 

Airey  v.  Hall,  3  Sm.  &  Gif.  315      428 
Albany  Fire  Ins.  Co.  v.  Bay,  4  N. 

Y.  9  211 

Albert    v.    Albert,    74    Md.  526 

132,  583 
Alderson  v.  Peel,  64  L.  T.  645  ;  S. 

C.  7  T.  L.  Rep.  418       118,  125 
Aldridge  v.  Muirhead,  101  U.  S. 

397  473 

Alexander  v.  Alexander,  1  N.  Y. 

St.  Rep.  508  520 

V.  Brame,  7  De  G.,  M.  &  G. 

525  425 

V.  Morgan,  31  Ohio,  546  498 

Alger  V.  North  End  SavingsBank, 

146  Mass.  418  341 

Alleman  v.  Manning,  44  Mo.  App. 

4  '  518,  532,  583,  594 

Allen  V.  Allen,  13  S.  C.  512  534 

V.  Arme,  1  Vern.  365  87 

V.  Cowan,  23  N.  Y.  502     106,  154 

V.  De  Groodt,    98     Mo.    159 

549,  554 
V.  Davis,  4  De  G.  &  S.  133        458 


Allen  V.  Duffie,  43  Mich.  1 ;  S.  C. 

38  Am.  Rep.  159  231,  281 

V.  Hooper,  50  Me.  371  53 

V.   Polereczky,    31   Me.    3.38 

66,  86,  147 
V.  Richmond  College,  41  Mu. 
302  82 

Aller  V.  Aller,  40  N.  J.  L.  446         242 
Allerton  v.  Lang,  10  Bosw.  (N.  Y.) 

362  69 

V.  Lang,  10  Bosw.  362  348 

Alleyne  v.  Alleyne,8  Ir.  Eq.  493; 

S.  C.  2  Jon.  &  L.  t>44     515,  554 
Allman  v.  Pitrg,  82  111.  149 ;  S.  C. 

25  Amer.  Rep.  303  443 

Alsop  r.  Santhold  Savings  Bank, 

21  N.  Y.  Sup.  300  189,  317 

Ambrose  i'.  Ambrose,  1  P.  Wiuh. 

321  591 

AiTierican  Bible  Societv  ';.  Mar- 
shall, 15  Ohio  St."  537  59 
American,  etc.,  Rv.  Co.  v.  Miles, 

52  111.  174  '  56 

Amer  v.  Chew,  5  Met.  320        51,  344 
Amherst  Academy  v.  Cowls,  6 

Pick.  427  274 

Anderson  v.   Baker,  1  Goo.  595 

118,  121,  122,  204 
V.  Belcher,  1  Hill  (S.  C),  L. 

246  106 

V.  Dunn,  19  Ark.  GnO         177,  202 
V.   Ellsworth,   7  Jur.   N.  S. 

1047;  S.  C.  3  Girt.  154  447 

r.  Jackson,  16  Johns.  381         79 

r.  Scott,  94  -Mo.  637  226 

V.  Tliompson,  11  Leigh.  4;)9     176 

Anderwood  c.  Waldron,  12  Mich. 

73  ^'■•» 

Andree  r.  Ward,  1  Rn.«s.  2(">0  ^        l.s2 
Andrew  v.  Andrew,  30  L.  T.  N.  S. 

457  ;  22  W.  R.  (W2  5.50 

r.  Blachlv,  11  Ohio  St.  SO        2t»2 

V.  Hall,  15  Ala.  85,  «K)  ^m 

Andrews  v.  Hall.  15  Ala.  85    601,  614 

V.  Hobson,  23  Ala.  219  420 

V.  Hallidav,  63  Ga.  263     543,  594 

V.  Oxlov,  38  la.  578  213 

Annand  r.  Honevwood,  1  Eq.  Cas. 

Abr.  153 

621 


532 


622 


Table  of  Cases  Cited. 


Amis  V.  Witt,  33  Beav.  619 ;  S.  C. 
1  B.  &  S.  109 ;  7  Jur.  (N.  S.) 
499 ;  30  L.  J.  Q.  B.  318  ;  9 
W.  R.  691 ;  4  L.  T.  N.  S. 
283  243, 248,  307 

Anon.,  3  Swan.  400,  note  170 

34  Ala. 430  480,  491 

16  Abb.  Pr.  428  456 

Anson  v.  Townsend,  73  Cal.  415    385 
Anthony  v.  Harrison,  14  Hun, 198, 

attirmed  74  N.  Y.  613  242 

Antrobus  v.  Smith,  12  Ves.  39 

224,  351,  423,  425,  439 
Archbishop    of    Canterbury    v. 

Robertson,  1  Cr.  &  M.  690  505 
Archer  v.  Hudson,  7  Beav.  551 

442,  462 
V.  M'Fall,  Rice  L.  (S.  C.)  73 

217,  218 
Armitage  v.  Mace,  96  N.  Y.  538 ; 
S.  C.  16  J.  &  S.  107 

49,  62,  107,  149,  156 
V.  Midoe,  36  Mich.  124         70,  73 
Armstrong  v.  Timperon,  19  W.  R. 

558 :  24  L.  T.  N.  S.  275         426 
Arnold  v.  Haronn,  43  Hun,  278 

536,  575,  596 
Arrington  v.  Arrington,  1  Hav,  1 

108,  115 
V.  Dortch,  77  N.  C.  367  525 

Ashbrook  v.  Rvan,  2  Bush.  228 

312,  425 
Ashley,    Ex  parte,    4    Pick.    21 

521   582 
Ashton  V.  Clerk,  Sel.  Ch.  Cas.  14'    23 
V.  Dawson,  Sel.  Ch.  Cas.  14       45 
V.    Dawson,    2    Colby,    364, 

note  191,  197 

V.  M'Dougall,  5  Beav.  56 ;  S. 
C.  6  Jur.  447  ;  11  L.  J.  (N. 
S.)  Ch.  447  484,  491 

V.  Thompson,  32  Minn.  25 

457,  461,  462 
Ash  well  V.  Lomi,  L.  R.  2  P.  &  D. 

477 ;  S.  C.  4  Moak.  700         458 

Aston  V.  Pye,  5  Ves.  350  262 

Atkinson,  In  re,  16  R.  I.  413  320 

V.  Atkinson,  15  La.  Ann.  491  212 

V.  Jackson,  8  Ind.  31  386 

Attorney  General  v.  Batley,    26 

L.  J.  (N.  S.)  392  59 

Atwood  V.   Holcomb,  39   Conn. 

270  473 

Aubuchon  v.  Bender,  44  Mo.  566  437 
Audenreid's  Appeal,  89  Pa.  St. 
114;  S.  C.  33  Amer.  Rep. 
731  458 

Augusta  Savings  Bank  v.  Fogg, 

82  Me.  538  37,  141,  320 


Austin  V.  Mead,  L.  R.  15  Ch.  Div. 
651;  S.  C.  50L.  J.  Ch.30; 
43  L.  T.   117;   28  W.    R. 

891  244,  245,  303 

V.  Palmer,  7  N.  S.  La.  21  565 

Autrey  v.  Autrey,  37  Ala.  614 

575,  578,  594 

Babcock  v.  Babcock,  53    How. 

Pr.  97  480,  495 

Back  V.  Andrew,  2  Vern.  120         555 
Backer  v.  Meyer,  43  Fed.  Rep. 

702  121, 204 

Badger  v.  Lyon,  7  Ala.  564  408 

Baggs  V.  Baggs,  54  Geo.  95  213 

Baiche  v.  Alie,  1  Rev.  Leg.  77  24 

Bailey  v.  Bailey,  6  Conn.  308         534 
Baird  v.  Stearne,  15  Phila.  339  ; 
S.  C.  39  Leg.  Int.  374 

485,  486,  489,  495 
Baker  v.  Bradley,  7  De  Gex.,  M. 

&  G.  597  461 

V.  Chase,  6  Hill,  482  488,  495 

V.  Clark  Inst.,  110  Mass.  88  58 
V.  Johnston,  21  Mich.  319  275 
V.  Jordan,  73  N.  C.  145  498 

V.    Leathers,   3    Ind.    558 

528,  549 
V.  Williams,  34  Ind.  547      35,  72 
Bakersfield,  etc.,  v.  Chester,  55 

Cal.  98  392 

Bale  V.  Newton,  1  Vern.  464  87 

Ball  V.  Montgomery,  2  Ves.  Jr. 

191 ;  S.  C.  4  Bro.  C.  C.  339   479 
Baltimore    Retort,    etc.,  Co.    v. 
Mali,  65  Md.  93  ;  S.  C.  57 
Amer.  Rep.  304  351 

Banks  v.  Hatton,  1  Nott.  &  McC. 

221  197, 217 

V.   Marksberrv,  3  Litt.  275 

5,  66,  67,  106,  170,  175,  177 

V.  May,  3  A.  K.  Marsh ,425     423 

V.  Sliannonhouse,  Phillips  L. 

(N.  C.)  284  530,  612 

V.  Sutton,  2  P.  Wms.  700     495 

Bank  of  London  v.  Tyrell,  5  Jur. 

(N.  S.)  924  57 

Bank  of  Montreal  v.  Simson,  10 

Low.  Can.  225  469 

Bank  of  U.  S.  v.   Carrington,  7 

Leigh.  576  546 

Barber    v.    Taylor,  9  Dana,    84 

527,  532,  606 
Barclay's  Estate,  2  W.  N.  C.  447 ; 

S.  C.  33  Leg.  Int.  108     119,  140 
Barker  v.  Cormins,  110  Mass.  477 

511,  512 
V.  Barker,  2  Gratt.  344  176 

■V.  Frye,  75  Me.  29  228,  342 


Table  of  Case's  Cited. 


623 


Barker  v.  Harbeck,  17  N.  Y.  St. 

Rep.  678  333 

V.  Koneman,  13  Cal.  9  4,  369 

Barnes  v.  Allen,  25  Ind.  222  601 

V.  People,  25  111.  App.  136 

45,  140,  144,  146 
V.  Ferine,  9  Barb.  202  ;  S.  C. 
15  Barb.  249 ;  12  N.  Y.  18 

278,  279 
Barkam  v.  McKneely  (Ga.),  15 

S.  E.  Rep.  761  542 

Bark  ley  v.  Tapp,  87  Ind.  25  474 

Barney  v.  Ball,  24  Geo.  505  204 

Barns  v.  Hatch,  3  N.  H.  304  71 

Barnum    v.    Reed,   136  111.  388 

48, 193,  204,  229,  413 
Barrett  v.  Morriss,  33  Gratt.  273  611 
Barrill  v.  Calender,  etc.,  Co.,  50 

Hun,  257  56 

Barrow  v.  Greenough,  4  Ves.  152  438 
Bartholomew     v.     Jackson,     20 

Johns.  28  83 

Bartlett  v.  Gillard,  3  Russ.  149       211 

V.  Pickersgill,  1  Eden,  515       547 

V.  Remington,  59  N.  H.  364     335 

Barton  v.  Gaines,  3  H.  &  N.  387    237 

V.  Rice,  22  Pick.  508         521,  587 

t.  Vanheythuysen,  11  Hare, 

126  467 

Barziza  v.  Graves,  25  Tex.      322 

197,  202,  203,  204 
Basket  v.  Hassell,  107  U.  S.  602 ; 
S.  C.  affirming  6  Rep.  609, 
8   Biss.  303 ;  S.  C.  108  U. 
S.  267  98,  120,  178,  243  307 

Bason  v.  Harden,  72  N.  C.  281  605 
Bateman  v.  Bateman,  2  Vern.  436  549 
Bates  V.   Kempton,  7   Gray,  382 

99  240 
V.  Vary,  40  Ala.  4.34  '  116 

Batstone  v.  Salter,  10  L.  R.  Ch. 
App.  431  ;  S.  C.  L.  R.  19 
Eq.  Cas.  250  532, 555,  569 

Battersbee     v.      Farrington,     1 

Swanst.  106  49 

Batton  V.  Allen,  1  Hal.  Ch.  99 

563,  564,  575,  596 
Baurne  v.  Fosbrooke,  18  C.  B.  N. 
S.  515 ;  S.  C.  34  L.  J.  C.  P. 
164 ;  11  Jur.  N.  S.  202  107 

Bay  V.  Cook,  31  lU.  336 

11,  468,  549,  570 
Bayley  v.  Boulcott,  4  Russ.  345 

92,226,421,422 
Baxter  v.  Knowles,  12  Allen,  114 

51,  199 
Beach  v.  First  M.  E.  Church,  96 

111.  177  280 

V.  White  Ch.  (Mich.)  495        469 


Beak  v.  Beak,  13  L.  R.  Eq.  489 ; 
S.  C.  4  L.  J.  Ch.  470,  26  L. 
T.  281  302 

Beale  ?;.  Dale,  25  Mo.  301  2 is 

V.  Warren,  2  Grav,  447  437 

Beall  V.  Beall,  8  Ga.  2'l0  96 

V.  Clark,  71  Geo.  818 

376,  387,  392,  395,  404 
Beals  V.  Crowley,  59  Cal.  665  37,  140 
Beard  v.  Nutthall,  1  Vern.  427  87 
Beardslee    v.    Reeves,   76  Mich. 

661  243 

Beatie  v.  Calhoun,  73  Geo.  269       369 
Beatson  v.  Beatson,  12  Sims.  281 

S7,  426 
Beaver  v.  Beaver,  62  Hun,  194; 
S.  C.  16  N.  Y.  Supp.  476 

320,  321 
V.  Beaver,  32  N.  E.  Rep.  998    308 
V.  Beaver,  117  X.  Y.  421 ;  re- 
versing 53  Hun,  258 

117,  126,  320,  321, 419 
Beck  V.  Beck,  64  la.  155  495 

V.  Graybill,  28  Pa.  St.  66  567 

Beckford  v.  Beckford,  Loflt.  490 

549  554 
Beckwith  v.  Butler,  1  Wash.  (Va.)' 

224  606,611 

Bedell  v.  Carll,  33  N.  Y.  581 

16,  21,  55,  62,  64,  76,  106,  192, 
194,  231,241,258 
Beebe  v.  Estabrook,  79  N.  Y.  24(3 ; 

S.  C.  11  Hun,  523  524 

Beech  v.  Keep,  18  Beav.  285 :  S. 
C.  18  Jiir.971;23L.  J.Ch. 
539;  2  W.  R.  316,  352  423,  428 
V.  Mayall,  16  Ciray.  37(i  \W 

Beeden  or  Beecher  r.  Mavor,  11 
Jur.  N.  S.  537 :  S."  C.  13 
W.  R.  853;  12  L.  T.  (N. 
S.)  562;  affirmed  18  L.  T. 
(N.  S.)  554  352 

Beeman  v.  Knajip,  13  Gr.  Ch. 

398  445,451,453,459 

Beers  r.  New  York  Life  Ins.  Co., 

20  N.  Y.  Supp.  7S8  58 

Behan   v.   Erickson,   7  Qui).   L. 

295  4(«» 

Beith  r.  Beith,  76  la.  601  44S 

Bell  V.  Ferguson,  3  Gr.  (Pa.)  289 

4*^0,  4S1 
V.  ISfcCawlev,    29  Geo.    355 

21 S,  220,  228 

V.  Strother,  3  ^foC.  207  '  217,  224 

Beniis  v.  Stearns,  l(i  Mass.  200       588 

Bennett,  In  re,  17  L.  T.  N.  S.  4.38  417 

V.  Bennett,  10  Ch.  Div.  474  ; 

S.  C.  27  W.  R.  573  ;  40  L. 

T.  N.  S.  378  532,  569 


624 


Table  of  Cases  Cited. 


Bennett  v.  Cook,  28  S.  C.  353 

66,  164,  184,  199,  201 
V.  President,  etc.,  11   Mass. 

421  168 

V.  St.  Louis,  etc.,  19  Mo.  App. 
349  56 

Benoit  v.  Benoit,  8  La.  228      509,  614 
Bensley  v.  Atwell,  12  Cal.  231  71 

Bent  V.  Bent,  44  Vt.  555  213 

V.  Priest,  86  Mo.  475  58 

Bentley  v.  Dunkle,  57  Ind.  374      468 
V.  Mackav,  15  Beav.  12  419 

Berdo  v.  Dawson,  34  Beav.  603      462 
Beresford  v.  Archbishop  of  Ar- 
magh, 13  Sims.  643  211 
V.  Crawford,  51  Ga.  20              578 
Bergen  v.  lldall,  31  Barb.  9            4()1 
Berrien  r.  M'Lane,  Hoff.  Ch.  421  456 
Berry  v.  Berry,  31  la.  415  80 
V.  Kinnaiird,  20  S.  W.  Rep.  511    87 
V.  Morse,  1  H.  L.  Cas.  71          563 
Berthelot  v.  Fitch,   (La).  10  So. 

Pvep.  867  606,  611 

Bestor  v.  Wathen,  60  111.  138  58 

Bettes  V.  Magoon,  85  Mo.  301  49 

Bettle  V.  Wilson,  14  Ohio,  257        213 
Betts  V.  Frances,  1  Vr.  152  213 

Bettv  V.  Moore,  1  Dana,  235  182 

Bibb  V.  Hunter,  79  Ala.  351  546 

V.  Smith,  1  Dana,  580       423,  454 
Biedler  v.  Biedlei',  87  A' a.  300        601 
Biehn  v.  Biehn,  18  Gr.  Ch.  497      376 
Bigelow  V.  Paton,  4  Mich.  170  112, 120 
V.  Poole,  10  Grey,  104  585 

Billage  v.  Southee,  9  Hare,  534 ; 

S.  C.  16  Jur.  188  457 

Billings  V.  Devaux,  3  Man.  &  Gr. 

565  300 

Binion  v.  Stone,  2  Fren.  Ch.  169 ; 

S.  C.  Nels.  68  553 

Birch  V.  Blagrave,  Amb.  264  425 

Bird's  Estate,  2  Pars.  (Pa.)  168      613 
Birr  v.  People,  113  111.  7 

Bishop  r.  Davenport,  58  111.  105    541 
V.  Redmond,  83  Ind.  157  470 

Bissell  V.  City  of  Kankakee,  64 

111.  249  58 

Bivins  v.  Jarnigin,  3  Baxt.  282        96 
Black  V.  Black,  2  E.  &  A.  U.  C. 

419,  reversing  9  Gr.  403        398 
V.  Black,  30  N.  J.  Eq.  215 

52,  53,  464 
V.  Whitall,  1  Stock.  (N.  J.) 
572  533,  609 

Blackerrv  v.  Holton,  5  Dana,  520    540 
Blagg  V.  Hunter,  15  Ark.  246 

201,  204,  372 
Blaisdell  v.  Lock,  52  N.  H.  238 

336,  424 


Blaikie  v.  Clarke,  22  L.  J.  Ch. 

377  457 

Blain  v.  Terryberry,  9  Gr.  Ch. 

286  207 

Blake  v.  Jones,  Bail  Eq.  (S.  C.) 

141  104,  203 

V.  Kearney,  Manning  (La.), 

320  260 

V.  Pegram,  109  Mass.  541  141 
Blakey  v.  Blakey,  9  Ala.  391  170,  175 
Blakely  v.  Brady,  2  Dru.  &  Wal. 

311  256,  428 

V.  Tisdale,  14  Rich.  Eq.  90  54 
Blalock  V.  Milard,  87  Geo.  573 

198,  369,  377 
Blanchard  v.  Commonwealth,  6 

Watts,  307  614 

V.  Sheldon,  43  Vt.  512  32,  77,  141 
V.  Williamson,  70  111.  647         268 
Blanchett  v.  Foster,  2  Ves.    Sr. 

264  479, 489 

Bland  v.  Macculloch,  9  W.  R.  65    154 
Blatchford  v.  Ross,  5  Abb.  Pr.  N. 

S. 434  56 

Blithe's  Case,  Freem.  Ch.  91  479 

Blockley  v.  Blocklev,   29  L.  R. 
Ch.  Div.  250;S.  C.  54L.J. 
Ch.  722 ;  33  W.  R.  777    11,  559 
Bloomer  v.  Bloomer,   2    Bradf. 

339  23,  41,  98 

Blount  V.  Burrow,  4  Brown  C.  C. 

72  21,  27,  29 

Board,  etc.,  v.  Auditor-General, 

68  i\Iich.  659  64,  87 

V.  Callihan,  33  W.  Va.  209      111 

Boardman  r.  AVillard,  73  la.  20     430 

Bohanan  v.  Bohanan,  96  111.  591     377 

Bohn  V.  Headley,  7  H.  &  J.  257 

170,  177 
Bolin's  Estate,  32  N.  E.  Rep.  626; 

S.  C.  20  N.  Y.  Sup.  16  329 

Bolton  V.  Bolton,  Swanst.  414         440 
Bonaffe  v.  Bonaffe,  Mann  (La.), 

339  67,  119 

Bone  V.  Pollard,  24  Beav.  283         549 
Boney  v.  Hollingsworth,  23  Ala. 

690  459 

Booker  v.  Allen,  2  R.  &.  M.  270 

530, 593 
Boone  v.  Citizens'  Savings  Bank, 

21  Hun,  235  324,  342 

Booth  V.  Cornell,  2  Redf.  261  62 

V.  Terrill,  16  Ga.  20  ;  S.  C.  18 

Geo.  570  7,  9,  176,  182 

V.  Woodbury,  32  Conn.  118       59 
Boozer  v.  League,  27  S.  C.  348        547 
Borneman  v.  Sidlinger,  15    Me. 
429  ;  S.  C.  21  Me.  185 

45, 140, 145,  241,  243 


Table  of  Case^i  Cited. 


625 


Boruflf  V.  Stipp,  126  Ind.  32  48 

Borum  v.  King,  37  Ala.  GOi)  241 

Boston,  etc.,  Co.  v.  Ansell,  59  L.  J. 

Rep. 345  57 

Bostwick   V.  Mahaffy,  48  Mich. 

342  140,  146 

Bottle  V.  Knocker,  25  W.  R.  209  ; 
S.  C.  35  L.  T.  N.  S.  545 ;  46 
L.  J.  Ch.  159  370 

Boudreau    i'.   Boudreau,  45  111. 

480  194, 228 

Bouajhton  v.   Boughton,   1  Atk. 

625  87 

Bourne  v.  Hart,  93  Cal.  321  54 

V.  Steven,<on,  58  Me.  499  317 

Boutell  r.  Cowden,  9  Mass.  254      274 
Bouts  V.  Ellis,  17  Beav.  121  ;  af- 
firmed 4  De  G.,  M.  &  G. 
249;    S.    C.    17    Jur.    585 

140,  306 
Bowen  v.  Newell,  13  N.  Y.  290  292 
Bowers  v.  Hurd,  10  IVIass.  427 

250,  268.  274 
Bowles  V.  Landaff,  59  N.  H.  164      59 
V.  Winchester,  13  Bush.  1 

521,  606,  608 
Boyd's  Case,  1  De  G.  &  J.  223 ;  2 
Jur.  N.  S.  897 ;  26  L.  J.  Ch. 
737  417 

Boyd  V.  Boyd,  4  L.  R.  Eq.  Cas. 
305 ;  S.  C.  36  L.  J.  Ch.  877  ; 
15  W.  R.  1071 ;  16  L.  T.  N. 
S.  660  11,  559,  562 

V.  Bovd,  66  Pa.  St.  283  450 

V.  M'Lean,  1  Johns.  Ch.  582   546 
V.  Shouldice,  22  Gr.  Ch.  (U. 

C.)  1  384 

V.  White,  32  Ga.  530, 

570,  601,  609,  611 
Boyes?'.  Carritt,  26  L.  K.  Ch.  Div. 
531  ;  S.  C.  53  L.  J.  Ch.  654  ; 
50  L.  T.  531 ;  32  W.  R.  636  427 
Boykin  v.  Smith,  65  Ala.  294  391,  392 
Boyse  v.  Ross  borough,  6  H.  L. 

Cas.  2  442,  450 

Boze  V.  Davis,  14  Lex.  331  376 

Brabrook  v.  Boston,  etc..  Bank, 
104  Mass.  228  ;  S.  C.  6  Am. 
Rep.  222  332,  345,  424 

Bradley  v.  Hunt,  5  Gill.  &  J.  54 

105,  268 
V.  Moslev,  3  Call,  50  182 

Bradsher   i^.'Connadv,  76  N.  C. 

445  213,  516,  519,  560 

Bradshaw  v.  Mayfield,  18  Tex. 

21  49, 212 

Branch  v.  Dawson,  36  Minn.  193 

68,  311 
Brannan  v.  Adams,  76  111.  331  7 

40 


Bransford  v.  Crawford,  51  Ga.  20 

522,  587 
Brantley  v.  Cameron,  78  Ala.  72  105 
Brashears?'.  Blassinganie,  1  Xntt. 

&  McC.  (S.  C.)  223  104, 203, 217 
Brault  V.  Brault,  1  Leg.  News, 

495  443 

Breier  v.  Weier,  33  111.  App.  .386    127 
Breithaupt  v.  Bauskett,  1  Rich. 

Eq.  465  55 

Breton  r.  Woolven,  L.  R.  17  Ch. 
Div.  416;S.C.  .50L.  J.Ch. 
Div.  369  ;  44  L.  T.  N.  8. 
237  ;  29  W.  R.  777  150 

Brewer  v.  Connell,  11   Humph. 

500  480,  490 

V.  Harvey,  72  N.  C.  176  IHl 

Brice  v.  Myers,  5  Ohio,  121  468 

Brickhouse    r.    Bri.-"khouse,    11 

Ired.  (N.  C).  L.  404  241 

Bridge  v.  Bridge,  16  Beav.  315 ; 
S.  C.  16Jur.  1031 

352,  414,  423,  426,  427 
Bridgersi'.  Hutchins,  11  Ired.  L. 

68  528,  532,  565 

Bridgewater  Academy  v.  Gilbert, 

2  Pick.  579       '  274 

Brier  v.  Weier,  33  111.  App.  .386     224 
Bright    V.    Bright,    41     111.    97 

380,  389,  404 
V.  Bright,  8  B.  Mon.  194  371 

Brink  v.  Gould,  43  How.  Pr.  289 

64,143 
Brinckerhoff    v.    Lawrence,     2 

Sandf.  Ch.  400       105,  108,  127 
V.   Merselis,  4  Zab.   (N.  J.) 
680  51-* 

Broadheadt'.  Milwaukee,  10  Wis. 

624  5^ 

Brock  V.  Bowman,  Rich.  (S.  C.) 

Eq.  Cas.  185  471 

Brodish  v.  (iibbs,  3  Johns.  523       211 
Broderick   r.  Waltham    Saving>» 

Bank,  10!)  Mass.  149  .345 

Brolasky's  Estate,  3  Penny,  329    5<i5 
Bromlev  v.  Brunton,  <>  L.  R.  Iv]. 
275;S.C.  37L.J.  Ch.W2; 
]8  L.  T.  N.  S.  628:  16  W. 
R.  1006  244,  2.»4.  295 

Brook  V.  Latimer,  44  Kan.  431 

511.  5»;4.  .193 

Brooks  V.  Brooks,  12  S.  C.  422        -W. 

V.  Fowler,  82  Geo.  329  -JO*] 

Brown  r.  Bisiiop,5  Hawaiian,  .■>4  AU 

V.  Brown,  18  C  >nn.  410;  S. 

C.  46  Am.  Dec.  328 

21.239,241,243 

r  Brown,  4  B.  Mon.  5:V>    86,  107 
V.  Brown,  2  Ired.  Eq.  309        53o 


626 


Table  of  Cases  Cited. 


Brown  v.  Brown,  16  Vt.  197  521,  582 
V.  Brown,  23  Barb.  565  326 

V.  Bronson,    45    Mich.    415 

480,  495 
V.  Burke,  22  Ga.  574  549 

V.  Dortch,  12  Heisk.  740  607 

V.  Kelsey,  2  Gush.  243  182 

V.  Kennedy,  33   Beav.    133  ; 

8.  G.  9  Jur.  N.  S.  1163  371 

V.  Moore,  3  Head.  670        32,  268 
V.  Niethammer,  141  Pa.  St. 

114  91,  156 

V.  Taylor,  62  Ind.  295  526 

V.  Vandermuelen,  41  Mich. 
522  469 

Browne  v.  Cavendish,  1  J.  &  L. 

637  436 

Brownlee  v.  Fenwick,  103   Mo. 

420  64,  226 

Brownlow  v.  Meath,  2  Ir.   Eq. 

383 ;  S.  C.  Dr.  &  Wal.  674    533 
Browns  v.  Brown,  4  B.  Mon.  535 

6,170 
Bruce  v.  Griscom,  9  Hun,  280 ; 

S.  G.  70  N.  Y.  612  563,  594 

V.  Slemp,  82  Va.  352  528, 575,  590 
V.  Wood,  1  Met.  542  508 

Brummet  v.  Barber,  2  Hill  (S.  G.), 

543  182 

Bruner  v.  Bruner.  115  111.  40  91 

Brunson  v.  Brunson,  Meigs,  630 

107,  601 
Brvant  v.  Ingraham,  16  Ala.  116 

106,  204,  225 
Bryan  v.  Duncan,  11  Ga.  67  9 

Brysoin  v.  Browrigg,  9  Ves.  Jr.  1 

23,  168 
Buchanan's    Estate,  2    Ghester 

(Pa.),  74  576 

V.  McNinch,  3  S.  G.  498    470,  471 

Buck  V.  Kittle,  49  Vt.  288  542 

r.  Pike,  11  Me.  9  546 

Buckeridge  v.  Glassie,  A.  &  P.  126  211 

Buckingham's  Appeal,  60  Gonn. 

143  320,  329 

Buckley  v.  Dunn,  67  Miss.  710       473 
Bucklin  v.  Bucklin,  1  Abb.  Ajip. 

Dec.  242  273 

•  Bucknor's  Estate,  7  Pa.  G.  C.  361 

518,  532 
Buford's  Heirs,  1  Dana,  107  440 

Buford  V.  McKee,  1  Dana,  107        371 
Bulbcck  V.  Silvester,  45  L.  J.  Gh. 

280  433 

Beith  V.  Beith,  76  la.  601  459 

Bulkelev  /'.  Noble,  2  Pick.  337 

582,  586,  587,  596 
Bull  V.  Brav,  89  Gal.  286  468 

Bullard  v.  Bullard,  5  Pick.  331       553 


207 

29() 

8S 


38'.t 

278 


394 


Bullard  v.  Randall,  1  Gray,  606      2SS 
Burn  V.  GarvaIho,4  M.  &  Cr.  690  42(5 
Bunn  V.  Markham,  7  Taunt.  224 ; 
S.  G.  2  Marsh,  532,  Holt, 
N.  P.  352 

20,  21,  43,  98,  116,  135,  176 
V.   Winthrop,  1  Johns.  Gh. 
329  420, 425 

Burbeck  v.  Spollen,  10  Amer.  Rec. 

491  518, 595 

Burgers  v.  Ghandler,  4  Rich.  L. 

170  218,  220 

Burgess  v.  Pollock,  53  Iowa,  273 
Burk  V.  Turner,  79  Tex.  276 
Burke  v.  Bishop,  27  La.  Ann.  465 ; 
S.  G.  21  Ainer.  Rep.  567 
V.  Steele,  40  Ga.  217 
Burkholder  v.  Ludlam,  30  Gratt. 
255;    S.   C.   32  Am.  Rep. 
668 
Burlington  University  v.  Barrett, 

22  la.  60 
Burney  v.  Ball,  24  Geo.  505      36,  199 
Burns  v.  Burns,  21  Gr.  Gh.  (U.  C.) 
7  378, 

V.  Sutherland,  7  Barr,  103 

386,  401,  408 
Burt  V.   Kimbell,  5  Port.  (Ala.) 

137  12 

Burton  v.  Baldwin,   61   la.  283 

522,  552,  596 
V.    Bridgeport    Savings 
Bank,'52  Conn.  398;S.  G 
52  Am.  Rep.  602 
V.Dickinson,  3  Yerg.  112 
V.  Duffield,  2Del.  Ch.  130 
V.  Pierpont,  2  P.  Wnis.  78 
Busby  V.  Byrd,  4  Rich.  Eq.  9    172,  176 
Buschain  );.  Hugart,  28  Ind.  449     166 
Busenbark  v.  Busenbark,  33  Kan. 

572  487, 495 

Bush  V.  Decuir,  11  La.  Ann.  503 

64,  70 
Buswell  V.  Fuller,  31  N.  E.  Rep. 

294  128 

Butler's  and  Baker's  Case,  3  Coke 

Rep.  26  h.  229,  427 

Butler  V.  Butler,  21  Kan.  521 ;  S. 
C.  30  Am.  Rep.  541 

480,  462,  486,  487,  495,  497 
V.  Hughes,  35  Geo.  200  218 

V.  M.  Ins.  Co.,  14  Ala.  777        549 
V.  Scolield,  4  J.  J.  Mar.    139 


337 

611 

376 

50 


Buzick  ;,'.  Buzick,  44  la.  259 
Byrd  v.  Ward,  4  McC.  228 
Byrn  v.  Godfrey,  4  Ves.  6 


170,  36S 
495 
220 
2f)2 


Cabell  V.  Puryear,  27  Gratt.  902     611 


Table  of  Cases  Cited. 


627 


Cadogan  v.  Kennett,  Cowp.  4;]2     467 
Cadwallader  v.  West,  458 

Cain  V.  Ligon,  71  Geo.  692 

210,  212,  463 
Cameron  v.  Cameron,  10  Em.  & 

M.  394  496 

Caines    v.   Marlev,    2  Yerg.  582 

170,  177 
r.  Colburn,  104  Mass.  274        213 
Caldwell  v.  Renfrew,  33  Vt.  213 

140,  186 
V.  Stuart,  2  Bail  L.  574  230 

V.  Williams,  1  Bail,  Eq.  175 

422,  431 
V.   Wilson,   2  Speer  Eq.  75 

104,  107,  187 
Calker's  Estate,  5  Redf.  480  227 

Cullender  v.  Horner,  26  Neb.  687     49 
V.  McCreary,  4  How.  (Miss.) 
356  533 

Calvert  r.  Davis,  5  Gill.  &  J.  269    449 
Camp  V.  Camp,  18  Hun,  217,  re- 

versin-z  2  Redf.  141  537 

Camp's  Appeal,  36  Conn.  88 ;  S. 

C.  4  Amer.  Rep.  39       241,  317 
Campbell's  Estate,  7  Pa.  St.  100 

66,  254,  257,  260 
Campbell  v.  Campbell,  21  Mich 

438  52, 547 

V.  Campbell,  70  Wis.  311  547 

V.  Mayes,  38  la.  9  376 

Cannon  v.  Apperson,  14  Lea,  553  609 
Capek  V.  Kropik,  129  111.  509  209,  369 
Caple  V.  McCollum,  27  Ala.  461  54() 
Carew  v.  Mathews,  49  Mich.  302  52 
Carhart  v.  Harshaw,  45  Wis.  340  472 
Carle  ton  v.  Earl  of  Dorset,  2 
Vern.  17 ;  S.  C.  Eq.  Ca.  Abr. 
59,  pi.  3  479 

Carley  v.  Green,  12  Allen,  104  51 

Carlisle  v.   Green,  19  S.  W.  Rep. 

925  614 

Carpenter  v.  Butterick,  41  Mich. 

706  191 

V.  Davis,  71  111.  395  163 

V.  Lodpe,  20  Vt.  595  5 

V.  Frankhn,  89  Tenn.  142 

49  50,473 
V.  Soule,  18  N.  Y.   251,  af- 
firming 13  Wkly.  Dig.  55 

245,  260,  263 
Carradine  v.  Carradine,  68  Miss. 

286   117,  118,  125,  166,  173,  187 

Carter  v.  Buchanan,  9  Geo.  539     218 

V.   Buckingham,  1    Handv, 

395  107,  109, 159,  191,  193, 

198,  204 

V.  Challen,  83  Ala.  135  546 

V.  Cutting,  5  Munf.  223  563 


PA<IB 

Carter  v.  Judge,  2  S.  &.  .VI.  42        20(i 
V.  Montgomery,  2  Tenn.  Ch. 

216  '  96 

V.  Rutland,  1  Hav  (N.  C),  97  216 
Cartwright  v.  Wise,  14  111.  417 

213,  550,  553 
Carty  v.  Connolly,  91  Cal.  15 

36,  .38,  445 
Carver  r.  Bowles,  2  Russ.  &  M. 

301  531 

V.  Carver,  53  Ind.  241       264,  2(55 
Case  V.  Dennison,  9  R.  I.  88    132,  32J 
V.  Codding,  38  Cal.  191  546 

Cassidy  v.  Belfast  Banking  Com- 
pany, 22  L.  R.  Ir.  68  mi 
Caskill  V.   Chambers,   26  Beav. 

360  r).s 

Castleton  v.  Langdon,  19  Vt.  210  (i<f 
Caston  V.  Cunningham,  3  Strob. 

L.  59  228 

Caswell  V.  Hill,  47  N.  H.  407  4(5,s 

V.  Ware,  30  Ga.  267  H-s 

Catholic  Knights  of  America  v. 

Morrison,  16  R.  I.  468  24« 

Catoe  V.  Catoe,  32  S.  C.  595  563 

Caton  V.  Caton,  L.  R.  1  Ch.  137  ; 

S.  C.  34  L.  J.  Ch.564;on 

appeal;  L.  R.  2  H.  L.  127; 

S.  C.  36  L.J.  Ch.  SS6;  14 

L.  T.  34 ;  14  W.  R.  267         440 
Catlett  V.  M.  E.  Church,  62  Ind. 

365 ;  S.  C.  30  Amer.  Ri-p. 

197  281 

Cauniont  v.  Bogert,  36  Hun,  382  359 
CawKicld  r.  Brown,  45  Ala.  552  (iOl 
Cawthorne  v.  Coppedge,  1  Swan. 

487  511,. 540 

Caylor  v.  Merchant,  5  West.  L. 

Mag,  194  5;}8,  5<i.5 

Cecil  V.  Butcher,  2  J.  &.  W.  56.5      425 
V.  Cecil,  20  Md.  15.3  577 

Cecil   Bank  v.  Snivelv,  23   Md. 

253  •'>46 

Central  Trust  Co.  v.  New  Yurk 

City,  etc.,  R.  R.  Co.,   18 

Abb.  N.  C.  .381  3»i<-. 

Ccrney  v.  Pawlot,  m  Wis.  262  .547 
Cevill  V.  Rich,  1  Vern.  181  50<5,  hX^ 
ChacluM-e  v.  Dumurtrait,  2  La.  40  37« 
Chadoin   v.  Carter,  12  B.  Mun. 

383  17'' 

Chadwick  v.  Doleman,  2  ^  trn. 

528  ^' 

Chalker  v.  Chalker,  5  Redf.  480  448 
Chamberlaine  r.  Cliamlx^rlaino, 

Freem.  Ch.  34  4.S.8 

Chambers  v.  Crabbe,  34  Bcav. 

455  462, 480 

V.  St.  Louis,  29  Mo.  543  59 


628 


Table  of  Cases   Cited. 


Champion  v.  Gordon,  70  Pa.  St. 

474  202 

Champney  v.  Blanchard,  39  N.  Y. 

411       16,  27,  125,  131,  246,  247 
Chandler  v.   Chandler,  62    Ga. 

612  89 

V.  Ferris,  1  Har.  454  449 

t'.Hollingsworth,  3  Del.  Ch. 
99;    8.'  C.   17  Amer.     L. 
Reg.  319  480,487,493,  494,  496 
Chaney  ('.'Basket,  6  Repr.  769       241 
Chantrell  v.  Chantrell,  37  L.  T. 

N.  8.  220  562 

Chapleau   v.  Chapleau,   1    Leg. 

News,  473  460 

Chapman  v.  Allen,  56  Conn.  152 

518,  538,  580 
V.  Gibson,  3  Bro.  C.  C.  229       523 
Chappell  V.  Griffith,  52  L.  T.  459 ; 

S.  C.  50  J.  P.  86  421,  423 

Charlebois  v.  Cahill,  20  Law  Can. 

Jur.  27  74 

Charles  v.  Coker,  2  S.  C.  122  211 

Charlesworth  v.   Holt,   L.   R.  9 

Exch.  38  213 

Chase's  Estate,  7  Pa.  C.  C.  298 

389,  540 

Chase  V.  Box,  1  Eq.  Cas.  Abr.  155  532 

V.  Ewing,  51  Barb.  597     511,  512 

V.  McCay,  21  La.  Ann.  195       469 

V.  Redding,    13    Gray,    418 

46,  473,  474 
V.  Welsh,  45  Mich.  .345  469 

Chenier  v.  Coutlee,  7  Low.  Can. 

Jur.  291  81 

Cheshire  v.  Pavre,  16  B.  Mon. 

618  480,  482,  484,  485,  490 

Cheval  v.   Morrin,  6  Low.  Can. 

.Jur.  229  81 

Chevallier  v.  Wilson,  1  Tex.  161 

99,  105,  108, 110 
Chew  r.  Calvert,  1  Walk.  (Miss.) 

54  383 

V.  Chew,  383  la.  405  213 

Chichester  r.  Coventry,  L.  R.  2 

FT   T    71  51 5 

Child  w."  Child,  5  N.  Y.  Wkly. 

Dig.  16  71 

Chiles  V.  Gallagher,  67  Miss.  413  566 
Chinn  v.  Murray,  4  Gratt.   348 

606,  607 
Christian  College  v.  Hendley,  49 

Cal.  347  275 

Christian  v.  Coleman,  3  Leigh. 

30  611 

Christ's  Hospital  v.   Budgin,   2 

Vern.  683  266,  570,  571 

Christy's  Appeal,  1  Grant  (Pa.), 

369  510,  564,  565 


Christy  v.  Courtenay,  13  Beav.  96 

213  550  553 
Church  V.  Cole,  36  Ind.  34  '  '546 
Citizens'  Nat.  Bank  v.  Elliott,  55 

la.  104  56 

City  Wharton  v.  Walker,  4  B.  & 
C.  163 ;  S.  C.  6  Dowl.  & 
Ry.  288  89 

Claiborne  v.  Tanner,  18  Tex.  68  12 
Clark's  Case,  37  L.  J.  (N.  S.)  222  57 
Clark  V.  Clark,    108    Mass    522 

333,  345,  546 
V.  Danvers,  1  Ch.  Cas.  310  569 
V.  Depew,  25  Pa.  St.  509  468 

V.  Kingsley,     37    Hun,    246 

536,  537 
V.  Smith,  13  S.  C.  585  49 

V.  Troy,  20  Cal.  219  439 

V.  Warner,  6  Conn.  355  582 

V.  Willson,  27  Md.  693 

562,  574,  590, 595,  606,607 
Clark  Co.  v.  Lawrence,  63  111.  32  59 
Clarke  v.  Clarke,  17  B.  Mon.  698 

534,  587 
V.  Imperial,  etc.,  Co.,  4  B.  & 

Ad.  315  57 

V.  King,  34  W.  Va.  631  214 

V.  Lott,  11  111.  105  423 

Clarkson  v.  Stevens,  106  TJ.  S. 
505  ;  S.  C.  29  N.  J.  Eq.  602 ; 
28  N.  J.  Eq.  487  192 

Clavering  v.  Clavering,  Prec.  Ch. 

235  ;  S.  C.  2  Vern.  473  87 

V.  Yorke,  2  Colly,  363  2()1 

Clawson    v.    Clawson,    25    Ind. 

229  49 

V.  Eichbaum,  2  Grant  Cas. 
130  71 

Cleaver  v.  Kirk,  3  Met.  270  521 

Clement  v.  Chesseman,  27  Ch. 
Div.  631 ;  S.  C.  54  L.  J.  Ch. 
1.58;  33  W.  R.40  297,304 

Clements  v.   Hood,  57  Ala.  459 

574,  575,  578,  577,  580,  594,   596 
Clendenning  v.  Clymer,  17  Ind. 

155  513 

Cline  V.  Jones,  111  111.  563  574, 575 
Clock  V.  Chadeagne,  10  Hun,  97  131 
Clough  V.  Clough,  117  Mass.  83  79 
Cobb  V.  Knight,  74  Me.  253  436 

Cobbett  V.  Brock,  20  Beav.  524  458 
Cochrane  v.  Moore,  25  Q.  B.  Div. 
57;  S.  C.  59  L.  J.  Q.  B. 
377 ;  63  L.  T.  153 ;  38  W. 
R.  588  ;  54  J.  P.  804  ;  6  T. 
L.  R.  296 

107,  108,  109,  117,  124,  1.30, 131 
Coggeshall  v.  Pelton,  7  Johns.  Ch. 

292  60 


Table  of  CUses   Cited. 


(j'2'j 


Cole  V.  Leake,  27  Miss.  767  603 

V.  Lucas,  2  La.  Ann.  946 

54,  118,  127 
V.  O'Neill,  3  Md.  Ch.  174 

480,  484,  485 
Coles  V.  Pilkington,  44  L.  J.  Ch. 

381 ;  S.  C.  19  L.  R.  Eq.  174  384 
Coleman    v.   Parker,    114    Mass. 

30  136,  196 

V.  Smith,  55  Ala.  368  602 

Collier  v.  Baptist  Education 

Societj^  8  B.  Mon.  68    274,  276 
Collins   V.  Johnson,  57  Ala.  304 

97,  377,  391 
CoUinson  v.  Collinson,  5  De  G., 

M.  &  G.  409  550,  553 

r.  Pattrick,  2  Keen,  123 

250,  419,  429 
Colman  v.  Parker,  114  Mass.  30     134 
r.  Sarrel,  1  Ves.  50 ;  S.  C.  3 

Bro.  C.  C.  12    370,  415,  423,  421 
V.  Williams,  1  Bailv  (S.  C), 
Eq.  175  "  440 

Combs   V.   Watson,  2  Cin.  S.  C. 

(Ohio)  523  468 

Comer  v.  Comer,  119  HI.  170 

586,  594,  595,  615,  574 
V.  Folsom,  13  Minn.  213  59 

Comings  v.   Wellman,  14  N.  H. 

287  551, 554 

Commissioners  of  Canal  Fund  v. 

Perry,  5  Ohio  St.  55      275,  276 
Commonwealth  v.  Crompton,  137 

Pa.  St.  138  350 

Commonwealth  Ins.  Co.  v.  Crane, 

6  Met.  64  56 

Comstock  V.  Comstock,  57  Barb. 

453  453 

V.  Howd,  15  Mich.  237     275,  280 
Congregational  Society  v.  Perrv, 

6  N.  H.  164        ■  *     275 

Coningham  v.  Plunkett,  2  Y.  & 

Coll.  N.  C.  245  427 

Conklin  v.  Conklin,  20  Hun,  278 

223,  230,  259 
Conkling  v.  Springfield,  39  111.  98  80 
Conn  V.  Prewitt,  48  Ala.  637 

377,  392,  408 
Conner  v.  Hull,  36  Miss.  424  2 

V.  Root,  11  Colo.  183 

65,  140,  209,  210,  230,  307 
Connor  v.  Trawicks,  37  Ala.  289 

171, 172 
Conover  v.  Ruckman,  36  N.  J.  Eq. 

493  468, 470 

Conrad  v.  La  Rue,  52  Mich.  88       279 
Conser  v.  Snowden,  54  Md.  175 ; 
S.  C.  39  Am.  Rep.  368 

22,  27,  29,  37, 105,  322 


Constant  v.  Schuyler,   1    Paige, 

316  241,270 

Conyers  v.  Weltman,  14  N.   H. 

287  590 

Copeland  v.  Northeastern  R.  W 

Co.,  6  El.  &  Bl.  277  a51 

Copp  V.  Sawyer,  6  N.  H.  386  268,  2H9 
Cook  V.  Husted,  12  Johns.  188  1U.> 
Cooke  v.  Lamotte,  15  Beav.  234 

99, 4H2 
Cooner  v.  May,  3Strobh.  Eq.  185 

521,  560,  5»)l 
Cooper  V.  Burr,  45  Barb.  9 

107,  137,  181,  207 
Cordery  v.  Zealy,  2  Bail.  (S.  C.) 

L.  205  106,  471,  472 

Corle  V.  Monkhouse,  25  Atl.  Rep. 

157  152,  241 

Corley  v.  Corlev,  2  Coldw.  520 

370,  372 
Corman  v.  Carroll,  7  Allen,  199  274 
Cormerais  v.  Wesselhoeft,  114 

Mass.  550  213 

Cornell  v.  Cornell,  12  Hun,  312 

230,  243,  348 
Cornish  v.  Clark,  L.  R.  14  Eq.  184 ; 

42  L.  J.  (N.  S.)  Ch.  42  :  20 

W.  R.  897;26L.  T.  (N.  S.) 

494  4(>S 

Cornwall,  In  re,  6  Nat.  Bank 

Ref.  305  2H'.) 

Corrigan  v.  Corrigan,  15  Gr.  Ch. 

341  460 

Corson's  Estate,  137  Pa.  St.  160 

551,  457 
Corwn  V.  Corwin,  9  Barb.  219  4.39 
Cosnahan  v.  Grice,  15  Moo.  P.  C. 

215 ;   S.  C.  7   L.  J.  N.  S. 

81  21,  27,  231 

Cottage  Street  Church  v.  Ken- 
dall, 121  ]\rass.  528        280,  28(i 
Cotteen  v.  Missing,  1  Maild.  Cli. 

103  ()3.  (14,  415,  422,  429 

Cotton  r.  King,  2  P.  Wms.  358 ; 

S.  C.  2  Eq.  Ca.  Abr.  53,  pi. 

10  87,  425,  479,  4S4 

r.  Wood,  25  la.  43  213 

Coulson  r.  AUison,  2  De  Gex.,  F. 

ct  J.  521  458 

Coutant  V.  Schuyler,  1  l'aige,316  1-10 
Coutta  V.  Acworth,  L.  R.  8  Eq. 

558  99.  437,  447,  44H 

Cowee  /'.  Cornell,  75  N.  Y.  91 ;  8. 

C.  31  Am.  Rei>-  -128 

197.  253.  259,  2H9 
Cowell  V.  Dacrgett,  97  Ma.>^s.  434  49 
Cowen,  In  re,  3  Pitts.  471  242.  2f>') 
Cowper  V.  Scott.  3  Pr.  Wms.  119  53.) 
Cox  i\  Barnard,  8  Hare,  310  256 


630 


Table  of  Cases  Cited. 


Cox  V.  Cox,  26  Gratt.  305        382,  398 
V.  Hill,  6  Md.  274 

65,  106,  176,  182 
V.  Hunter,  79  Md.  590  469 

V.  Sprigg,  6  Md.  274  420 

(Jrobbe  v.  Crobbe,  1  Mvlne  & 
K.  511 ;  S.  C.  36  L.  J.  Ch. 
N.  S.  181  549,  555 

Craig  V.  Craig,  3  Barb.  Ch.  76        268 
V.  Kittredge  46  N.  H.  57 

32,  88,  119 

V.  Monitor,  76  la.  577  49,  50 

V.  Moorhead,  44  Pa.  St.  97       565 

Crain  v.  Wright,  46  111.  107  213 

Crane  v.  Allen,  11  La.  Ann.  492    202 

V.  Gough,  4  Md.  316 ;   S.  C.  3 

Md.  Ch.  119  440 

Cranson  v.  Cranson,  4  Mich.  330 

480,  487,  496 
Cranz  v.  Kroger,  22  III.  74  87,  160,  171 
Crawford,  Matter  of,  113  N.  Y. 

560  254, 308 

Crawford's  Appeal,  61  Pa.  St.  52 

418,  433 
Crawford  r.  Munson,  82  Ga.  118 

7  8  378 
V.  McElvoy,  2  Sp.  (S.  C.)  225  '  199 
V.  Puckett,  14  La.  Ann.  639 

2,  12,  90 
Cray  v.  Rooke.  Talb.  Cas.  156  271 
Crecelius  v.  Horst,  4  Mo.  App. 

419  495 

Creed  v.  President,  etc.,  1  Ohio 

St.  1  470,  472,  549 

Crops  V.  Baird,  3  Ohio  St,  277  71 

Cressman's  Appeal,  42  Pa.   St. 

147  428 

Crippen  v.  Bearden,  5  Humph. 

128  533 

Crispell  v.  Dubois,  4  Barb.  393       457 
Crittenden   v.  Canfield,  87  Midi. 

152  369, 377 

V.  Phoenix  Mutual  Life  Ins. 
Co.,  41  Mich.  442  184,  249 

Crompton  v.  Vasser,  19  Ala.  259    422 
Crook  V.  First  Nat.  Bank,  52  N. 

W.  Rep.  1131  248 

Crosbie  v.  M'Doul,  13  ^'es.  148       376 
V.  McDonal,  13  Ve.s.  148  550 

Crosby   v.   Covington,  24    Miss. 

619  511,  533,  562 

Cross  V.  Cross,  L.  R.  1  Ch.  (Ir.) 

Div.  389  22,  262 

V.  Sprigg,  6  Hare,  552  ;  S.  C. 
18  L.  J.  Ch.  N.  S.  204  262 

Crosslev  v.  Ehvorthv,  L.  R.  12 
Eq.  158;  S.  C.  40  L.  J. 
(N.  S.)  Ch.  480 ;  19  W.  R. 
842;  24L.  T.  (N.  S.)  607      468 


Crowles  v.  Crowles,  56  Conn.  240  518 
Crum  V.  Thornley,  47  111.  192  191 
Crumbaugh  v.  Kugler,  2  Ohio  St. 

373  468, 472 

Cruse  V.  Axtell,  50  Ind.  49  58 

Cunimings  v.  Bramhall,  120  Mass. 

552  364,  610 

V.  Coleman,  7  Rich.  Eq.  509 

228,  469,  480,  485 

V.  Meaks,  2  Pitts.  490 ;  S.  C. 

11  Pitts.  L.  Jr.  291         194,  224 

Curlin  v.  Hendricks,  35  Tex.  225  376 

Currant  v.  Jago,  1  -Coll.  261  523 

Curry  v.  EUerbe  (not  reported)     157 

V.  Powers,  70  N.  Y.  212 ;  S.  C. 

26  Am.  Rep.  577  303,  323 

V.  Rogers,  21  N.  H.  247  280 

Cutler  V.  Tuttle,  19  N.  J.  Eq.  549  214 
Curtis  V.  Portland  Savings  Bank, 
77  Me.  151 ;  S.  C.  52  Am. 
Rep.  750  317  318 

Curtiss  V.  Barrus,  38  Hun,  165  36, 256 
Cutter  r.  Butler,  5  Post.  (N.  H.) 

355  51 

V.     Griswold,    Walker     Ch. 
(Mich.)  437  469 

Cutting  V.  Oilman,  41  N.  H.  147  127 
V.  Tavlor,  51  N.  W.  Rep.  949    54 
Cutts  V.  Perkins,  12  Mass.  206        300 
Gushing  v.  Gushing,  7  Bush,  259   541 
Cushman  v.  Thaver  Manuf.  Co., 
76N.  Y.  365;  S.  C.  32  Am. 
Rep.  315,  affirming  7  Daly, 
330  365 

D'Orgenay  v.  Droz,  13  La.  382  6 

Dalbiac  ?'.  Dalbiac,  16  Ves.  116       211 
Dale  V.  Knapp,  98  Pa.  St.  389 ; 
S.  C.  42  Amer.  Rep.  624 ;  38 
Amer.  165  281 

V.  Lincoln,  62  111.  22  369 

Danby  v.  Tucker,  31  W.  R.  578 

107,  123 
Daniel  v.  Frost,  62  Geo.  697    394,  396 
V.  Smith,  64  Cal.  346 ;  75  Cal. 

548  25,  43,  45,  106  120 

V.  Veal,  32  Ga.  589  92 

Danlev  v.  Rector,  5  Eng.  (Ark.) 

'211  49 

Darden  v.  Harrill,  10  Lea,  421 

520,  574,  575 
Darland  v.  Taylor,  52  la.  503 

70,  72,  260 
Darlington  v.  McCoole,  1  Leigh, 

36  423 

Darne  r.  Llovd,  82  Va.  859  515,  517 
Darrier  r.  Darrier,  58  Mo.  222  213 
Datt's   Estate,   34   Pitts.   L.    Jr. 

349  597 


Table  of  Cases  Cited. 


631 


Daves  v.  Haywood,  1  Jones  Eq. 

253  525 

Davis  V.  Bowman,  55  Miss.  071 

392,  399,  405 
V.  Boyd,  6  Jones  L.  249  12 

V.  Davis,  5  La.  Ann.  5(il  604 

,.    V.  Davis,  5  Mo.  183  496 

V.  Davis,  68  Miss.  478  392 

V.  Davis,  1  Beav.  371  159 

V.  Davis,  1  ]Sott.  &  McC. 
(S.  C.)  224 ;  S.  C.  1  Beav. 
371  217 

V.  Duke,  2  Hav,  224  (400)        539 
V.  Duke,  1  Taylor  (N.  C),  213 
(102)  ;  S.  C.  Conf.  Rep.  361 
(439)  601 

V.  Dumas,  1  McC.  (S.  C.)  213  7, 217 
V.  Garrett,  18  S.  W.  Rep.  113 

140,  159 
V.  Moodv,  15  Ga.  175  96 

V.  Ney,  125  Mass.  590         46,  319 
V.  Zimmerman,  40  Mich.  24 

149,  193, 468 
Davison  v.  Davison,  2  Beas.  (N. 

J.)  246  83 

Dawson  v.  Dawson,  1  Dev.  (N.  C.) 

Eq.  93  422,  436 

Dawson  v.  McFaddin,  22  Nebr. 

131    375,  379,  389,  385,  387,  402 
V.  Macknet,  42  N.  J.  Eq.  633 

564,  593 
Day  t).  Dav,  100  Ind.  460  9 

Dayton  r.  "Rounds,  27  Mich.  82        59 
De'Cauip  r.   Dobbins,   31    N.  J. 

671  58 

De  Caumont  v.  Bogert,  36  Hun, 

383  '  537 

De  Graffenreid  v.  Mitchell,  3 

McC.  506  217 

De  Levillain  v.  Evans,  39  Cal.  120 

68,71,72 
De    Manneville    v.    Crompton, 

355, 481 
De  Ruviane's  Case,  L.  R.  5  Ch. 

Div.  306  57 

De  Visme,  In  re,  2  De  G.,  J.  &  Sm. 
17  ;  S.  C.  33  L.  J.  Ch.  332 

532,  569 
De  Voe  v.  Jones,  82  la.  66  213 

Dean  v.  Adler,  30  Md.  147  437 

V.  Corbett,  51  N.  Y.  Supr.  Ct. 

107  258 

V.  Dear,  6  Conn.  285  546 

i;.  Negley,  41  Pa.  St.  312;  S. 
C.  80  Amer.  Dec.  620  400 

Deacon  v.   Colquhoun,   2  Drew, 

21  356 

Dearmond  v.  Dearmond,  10  Ind. 

191  480 


PAGE 

Decker  v.  Waterman,  67  Barb. 

460  ()5,  202,  440,  443,  450 

Dedell  v.  Carll,  33  N.  Y.  581  225 

Degroffenreid  v.  Thomas,  14  Ala. 

681  202 

Delafield  v.  Parish,  25  N.  Y.  9 

450, 460 
Delamater's  Estate,  1    Whart. 

362  361 

Delashmut  v.  Trau,  44  la.  613  472 
Delaney  v.  Salina,  24  Kan.  532  60 
Deloach  v.  Turner,   7   Rich.  L. 

140  372 

Delmotte  v.  Taylor,  1  Redf.  417 

105,  107,  109,  112,  120,  135, 

137,  100 
Demers  v.  Lefebyre,  14  Low.  Can. 

Jur.  241  471 

Deming  v.  Williams,  26  Conn. 

226  ;  S.  C.  68  Am.  Dec.  386 

49,  347 
Denman  v.  McMahon,  37  Ind. 

241  262,  564,  565 

Dening    v.  Ware,  22  Beav.  184 

420,  431 
Dennisoni;.  Goehring,  7  Barr,  175 

431,  436 
Dent  V.  Bennett,  4  My.  &  Cr. 

269  458 

Deppe  V.  People,  9  Bradw.  349 

117,132 
Derby  v.  Weyrich,  8  Xeb.  174  472 
Deschappelles  v.  Labarre,  3  La. 

Ann.  522  376 

Destrehan  v.  Destrehan,  4  X.  S. 

(La.)  557  524 

Devay  v.  Devav,  3  Jur.  N.  S.  79 ; 

S.  C.  20  L.  J.  Ch.  290 ;  3 

Sm.  &  G.  403 

213,  574,  575,  592 
Devenish  v.  Baines,  Prec.  Ch.  3  438 
Develin  v.  Farmer,  16  Dalv,  98 

192,  320 
Devlin     r.    Greenwich    Savings 

Bank,  125  N.  Y.  756 

193,  194,  230 
Devol  V.  Dve,  123  Ind.  321 

45,  104,  109,  110,  114,  117,119, 

120,  139,  140,  142,  148,  168,  176, 

195 
Dewce's  Estate,  3  Brewster,  314  ; 

S.  C.  7  Phila.  498  2,  517 

Dexheimer  v.  Gautier.  34  TInw. 

Pr.472;S.C.5Rob.  (N.Y.) 

216  19,  21,34,  7() 

Dickeschied  v.  Exchange  Bank, 

28  W.  Va.  340  22,  24,  43, 

104, 108,  109.  no,  112,  114,  117, 

118,  127,  140,  143,  144,  145,  166 


632 


Table  of  Cases   Cited. 


Dicta.  McEwen  v.  Troost,  1  Sneed, 

185  134 

Diefendorf  v.  Diefendorf,  132  N. 

Y.  100  142 

Dille  V.  Webb,  61  Ind.  85        520,  615 
Dilley  v.  Love,  61  Md.  603,  612 

520,  528,  563 
Dillman  v.  Cox,  23  Ind.  440 

511,  520,  522,  552 
Dillon    V.   Coppin,  4    Mynle    & 
Craig  647;    S.  C.  9  L.  J. 
(N.  S.)  Ch.  87,  4  Jur.  427 

351,  358,  370,  425,  439 
Dilron  v.  Bone,  3  Giff.  538  428 

Dilts  V.  Stevenson,  2  C.  E.  Gr. 

(17  N.  J.)  407  106,  190,  194 

Dillwyn  v.  Llewelyn,  8  Jur.  N.  S. 
1068 ;  S.  C.  10  W.  R.  742  ; 
6  L.  T.  N.  S.  878  ;  4  De  G., 
F.  &  J.  517  384 

Dinsmore  v.  Webber,  59  Me.  103   290 
Dipple  V.  Corles,  11  Hare,  183 

422,  430 
Dismukes  v.  Musgrave,  2  La.  337  87 
Dittoe  V.  Cluney,  22  Ohio  St.  436 

528,  532 
Dixon  V.  Marston,  64  N.  H.  433  606 
Doak  r.  Runvon,  33  Mich.  75  469 
Dodd  V.  McCrow,  3  Eng.  83  158,  160 
Doe  V.  Lewis,  11  C.  B.  1035  480 

V.  Saunders,  2  Kerr  (N.  B.) 
18  602 

Doering  v.  Kenamore,  86  Mo.  588 

107,  166 
Doggett  V.  Lane,  12  Mo.  215  457 

Dole  V.  Lincoln,  31  Me.  422 

24,  27,  66,  87,  98,  140,  147 
Donaldson    v.   Donaldson,    Kav, 
711;  S.  C.  23  L.  J.  Ch.  788 

352,  426,  428 
Donalston  v.  Donalson.  Kay,  711    425 
Donnell  i:  Donnell,  1  Head,  267     241 
V.  Mateers,  5  Ired.  Ec].  7         535 
Donner  v.  Palmer,  31  Cal.  500  72 

Donover  v.  Argo,  79  la.  574  109 

Dosche  V.  Nette,  81  Tex.  265 

468,  470 
Doty  V.  Wilson,  47  N.  Y.  580 

64,  180,  189,  201,  428 
Dougherty  v.  Dougherty,  2  Strob. 

Eq.  63  ■  182 

V.  Moore,  71  Md.  248  322 

Douglass  V.  Brice,  4   Rich.    Eq. 

322  549, 567 

Dow  V.  Gould,  31  Cal.  629 

72,  151,  189 
Down  V.  Ellis,  35  Beav.  578  574,  592 
Downes  v.  Jennings,   32    Beav. 

290  482,  489,  490,  492 


Dowing  V.  Marshall,  23  N.  Y.  366  59 
Dovle  V.  Sleeper,  1  Dana,  531  546 
Dozier  v.  Matson,  94  Mo.  328  376 
Drake's  Appeal,  45  Conn.  9  4-50,  457 
Draper  v.  Jackson,  16  Mass.  480  266 
Dresser  v.  Dresser,  46  Me.  48 

17,  22,  36,  38,  86,  105,  1^0 
Drew  V.  Hagerty,  81  Me.  231 

22,  23,  126,  157,  320,  326 
V.  Martin,  2  Hem.  &  M.  130; 
S.  C.  10  Jur.  N.  S.  356 ;  33 
L.  J.  Ch.  367  550,  570,  572 

Drewe-Mercer  v.  Drewe-Mercer, 

6  T.  L.  R.  95  302 

Drischler  v.  Van  den  Henden,  49 

N.  Y.  Supr.  Ct.  508  259 

Druke  v.  Heiken,  61  Cal.  346 ;  S. 

C.  44  Am.  Rep.  553       241,  243 
Drurv  V.  Drury,  AVilmot's  Opin- 
'  ions,  177  ;  S.  C.  4  Bro.  Ch. 

506  495 

V.  Smith,  1  P.  Wms.  404 

140,  144,  235 
Duckett  V.  Duckett,  71  Md.  357 

374,  .396,  410 
Ducland  v.  Rosseau,  2  La.  Ann. 

168  80 

Dudlev  V.  Bachelder,  53  Me.  403  547 
V.  Bosworth,  10  Humph.  9         549 
Duff  V.  Leary,  146  Mass.  533 

197,  393,  405 
Duffell  V.  Noble,  14  Tex.  (J40  120,  428 
Duffield  V.  Elwes,  1  Bligh,  N.  S. 
497,  530,  reversing  1  Sim. 
&  St.  239  ;  S.  C.  1  L.  J.  Ch. 
239  21,  24,  45,  237 

V.  Hicks,  1  Dow.  H.  1 ;  S.  C. 
1  Bligh.  N.  S.  497 

207,  208,  243 

Duffin  V.  Duffin,  44  Ch.  Div.  76 ; 

S.  C.  59  L.  J.   Ch.  420 ;  62 

L.  T.  614 ;  38  W.  R.  369 ;  6 

T.  L.  R.  204  303,  308 

Duigan  v.  McCormack,  53  How. 

Pr.  411  358 

Duke  of  Richmond  v.  Milne,  17 

La.  312  54 

Duling  V.  Johnson,  32  Ind.  155 

107,  561,  575,  577 
Dumper  v.  Dumper,  8  Jur.  N.  S. 
503 ;  S.  C.  6  L.  T.  N.  S.  315 

574,  575 
Dummer  v.  Pitcher,  5  Sims.  35, 
affirmed  2  Mvlne  &  Keen, 
262  ■  266,  356,  555 

Dunbar  v.  Dunbar,  80  Me.  152 

112,  1.32,  18(i 
V.  Soule,  129  Mass.  284  60 

V.  Woodcock,  10  Leigh,  628     107 


Table  of  Cases  Cited. 


Duncan's  Appeal,  43  Pa.  St.  67 

480,  491,  492,  499 
Duncan  v.  Duncan,  5  Litt.  12 

67,  86,  98,  142 
V.  Henry,  125  Ind.  10  543 

Duncombe  v.  Richards,  46  Midi. 

166  63, 450,  451 

Dunham  v.  Averill,  45  Conn.  61    538 

V.  Pitkin,  53  Mich.  504  469 

Dunn  V.  Chambers,  4  Barb.  376     459 

V.  German  American  Bank, 

18  S.  W.  Rep.  1139  111 

Dunne  v.  Buvd,  8  Jr.  Eq.  Rep. 

609        "  36,  37,  38,  194,  205,  307 
Dunnage  v.  White,  Wils.  Ch.  67 

394,  459 
Dunnock  v.  Dunnock,  3  Md.  Ch. 

140  496 

Dupre  V.  Thompson,  4  Barb.  279  420 
Dupree  v.  Dupree,  Bu.sb.  Eq.  164  56 
Dupont   V.  Wertheman,  10  Cal. 

3.54  83 

Duplessis  V.  Kennedy,  6  La.  231 

72,  90 
Dupuis  V.  Cedillot,  10  Low.  Can. 

Jur.  338  74 

Dupuy  V.  Dupont,  11   La.  Ann. 

226  118,  152,  522,  532 

Durfee  v.  McClurg,  6  Mich.  223  52 
Durham   v.   Shannon,   116   Ind. 

403  198,  202,  230 

Dutch's  Appeal,  57  Pa.  St.  461 

551,  595,  596 

Dyer  v.  Dver,  2  Cox,  92  546,  549,  554 

V.  WiUiams,  62  Miss.  302         212 


Eales  V.  Drake,  L.  R.  1  Ch.  Div. 
217  ;  S.  C.  45  L.  J.  Ch.  51 ; 
24  W.  R.  184 
Earl  V.  Peck,  64  N.  Y.  596 
Earle  v.  Botsford,  20  N.  B.  407 

22,  32,  37,  39, 
Ebrand  v.  Dancer,  2  Ch.  Cas.  26 
Eckert  v.  Eckert,  3  P.  &  W.  332 
386,  387, 
V.  Gridlev,  104  111.  306 
V.  Mace,  3  P.  &  W.  364 
Ector  r.  Welsh.  29  Geo.  443 
Ea&ley  v.  Dye,  14  Ala.  158  86. 183, 
Eastham  v.  Powell,  51  Ark.  530 
V.  Moronoco  Savings  Bank, 
136  Mass.  208  180, 

Easton   r.  Pratchett,  2  Cr.  M. 
&R.442;  S.C.5Tyrwk. 
1129 
Eaton  V.  Carruth,  11  Neb.  231 
Eden  r.  Smith,  5  Ves.  .341 
Edings  V.  Whaley,  1  Rich.  Eq. 
(S.  C.)  301 


554 
269 

120 
523 

388 
86 
388 
159 
230 
602 

325 


252 
192 
262 

63 


Edgerly  v.  Edgerly,   112  Mas.s. 

175  213 

V.  First  Xat.  Xat.  Bank,  30 

111.  App.  425  473 

V.  Whalan,  106  Mass.  307  51 

Edrington  v.  Mayfield,    5   Tex. 

363  12 

Edwards  v.  Edwards,  39  Pa.  St. 

369  546 

V.  Ford,  2  Bail.  (S.  C.)  L.  461  474 
V.  Freeman,  2  P  Wms.  441 

11,  503,  509,  510,  540,  560,  562 
f.  Jones,  1  Myl.&C.  R.226; 
S.    C.   5    L.  J.    Ch.    194, 
aiBrming  7  Sim.  325 

21,  23,  24,  25,  37,  44,  98 
Egerton  v.  Carr,  94  N.  C.  648 

421,  4.33,  424 
V.  Egerton,  2  C.  E.  Gr.  419 

64,  65,  127,  241,  268 
Eisner  v.  Koehler,  1  Dem.  277 

581,  594 
Elam  V.   Keen,  4  Leiirh,   333 

^  174,241,248 
Elliott's  Appeal,  50  Pa.  St.  75         428 
Estate,  98  Mo.  37i),  384  613 

ElUott   r.   Armstrong,  2  Blackf. 

198  546 

V.  Collier,  1  Ves.  Gr.  15  507 

V.  Ojllier,  3  Atk.  526  506 

V.  Elliott.  2  Cii.  Cas.  231   550,  553 

Ellmaker  v.  Ellmaker,  4  Watts, 

89  474 

Ellis  V.  Nimmo,  L.  ct  G.  (Ir.)  .333  439 

V.  Sccf.r,  37  Midi.  185;  S.  C. 

18  Am.  Rej).  178        17,  .36,  121, 

19.5.  241,419,  423,  42fi 

V.  Ward,  25  N.  E.  Reji.  5.30        o.s 

Ellison  V.  Ellison,  6  Ves.  J  r.  6.i6 

414,  428,  4.3() 
Elston  V.  Schilling,  42  N.  Y.  79  51 1 
Emerv  r.  ClouL'h,  (>.{  N.  H.  ."v2 

'  12,  23,  24, 37,  43,  44,  45,  46,  51 . 
140,  1.S9 
England  v.  Downs,  2  Beav.  522 

481.  482,  485,  486,  489 
English  t'.  People,  96  111.  566  58 

Eshleman's  Appeal,  74  Pa.  St. 

42,  rev.  1  Leg.  Chron.  m      524 
Eskridge  r.  Farrar,  30  La.  Ann. 
718;    S.  C.  34  La.  Ann. 
709  6S,  90,  445 

Essex's  Est..  20  N.  Y.  Sup]).  61       1'.'2 
Essex  V.  Atkins,  14  Ves.  .542  .^2 

Esswein  v.  Seiuling,  2  Hill  Ch. 

(S.  C.)r>00  86.114.12.5,127 

Evans  v.  Battle.  19  Ala.  398    37S.  42-' 

V.  Evans,  2  E.  ct  A.  U.  C  1.56   3'.t7 

V.  Evans,  1  Heisk.  577      534,  oZ'3 


634 


Table  of  Cases   Cited. 


Evans  v.  Grey,  9  L.  R.  Ir.  539  424,  425 
V.  Jennings,  4  Jur.  X.  S.  551 ; 

S.  C.  6W.  K.  616  436 

V.  Lipscomb,  31  Ga.  71 

107,  112,  118,  197,  198,  204 
V.  Maxwell,  50  L.  T.  51       11,  569 
V.  Russell,  31  Leg.  Int.  125      437 
Evelyn  v.  Templar,  2  Bro.  Ch. 

148  431 

Everitt  v.  Everitt,  10  L.  R.  Eq. 

405  437 

Ewing  V.  Ewing,  2  Leigh,  337 

106,  170 
V.  Handley,  4  Litt.  346  410 

Eykyn,  In  re,  6  L.  R.  Ch.  Div. 
115;  S.  C.  L.  T.  N.  S.  261 

555,  571,  572 
Ezell  V.  Giles  Co.,  3  Head,  583         73 

Fairfield  v.  Barbour,  51  Mich.  57  399 

Fairley  v.  Fairley,  34  Miss.  18        471 

Fairly  v.  Fairly,  38  Miss.  280  5 

V.  M'Lean,  11  Ired.  (N.  C.) 

L.  158  241 

Falconer  v.  Holland,  5  Sm.  &  M. 

689  8,  206,  218,  219 

Falk  V.  Turner,  101  Mass.  494  436 
Fanning  v.  Russell,  94  111.  386  265 
Farman  v.  Smith,  57  L.  J.  Ch. 

637  ;  S.  C.  58  L.  T.  12  308 

Farmer  v.  Farmer,  39  N.  J.  Eq. 

211  .52, 464 

Farmers',  etc.,  Bank  v.  Downey, 

53  Cal.  466  58 

Farmington   Academy  v.  Allen, 

14  Mass.  172  274,  281 

Farnsworth  v.  Dinsmore,  2Swan, 

38  538,  603 

Farquharson  v.   Cave,  2    Collv, 

355;   S.  C.    15  L.  J.   Ch. 

N.  S.  137 

24,  .36,  118,  136,140,142 
Farrel  r.  Ferry,  1  Hay,  2  215 

Farrelly  v.  Ladd,  10  Allen,  127  345 
Fatheree  v.  Fletcher,  31  Miss.  265 

218,  515,  570 
Faulk  ;•.  Faulk,  23  Tex.  653 

12,  39, 212. 
Fav  II.  Rickman,  1  Busbee's  Eq. 

278  458 

Faxon  v.  Durant,  9  Met.  339  87 

Faxton  V.  Faxon,  28  Mich.  159  376 
Fearing?'.  Jones,  149  Mass.  65  122, 151 
Fellows  V.  Litle,  46  N.  H.  27 

511,  582,  583 
V.  Smith,  130  Mass.  378  197,  464 
V.  Smith,  40  Mich.  689  469 

Fels  V.  Fels,  1  Ohio  C.  C.  420 

519,  581,  582 


Fennell  v.  Henry,  70  Ala.  484; 

S.  C.  45  Am.  Rep.  88  533, 

561,  562,  563,  564,  574,  575,  594 
Ferris  v.  Goodburn,  27  L.  J.  N.  S. 

574  531 

V.  Parker,  13  Tex.  385  213 

Ferry  v.  Stephens,  66  N.  Y.  312, 
reversing  5  Hun,  109 

263,  264,  383 
V.  Stevens,  66  N.  Y.  321  405 

Fettiplace  v.  Gorges,  1  Ves.  Jr. 

46;  S.  C.3Bro.C.  C.8  51 

Fickett  V.  Durham,  109  Mass.  419 

547 
Fiero  v.  Fiero,  5  T.  &  C.  151  62 

Filmanv.  Filman,  15  Gr.  Ch.  643  586 
Finch  V.  Finch,  15  Ves.  43 

549, 553,  554,  596 
V.  Winchelsea,  1    P.  Wms. 
277 
Fink  V.  Cox,  18  Johns.  145 
First  Baptist  Society  v.  Robin- 
son, 21  N.  Y.  224 
First  Nat.  Bank  v.  Balcom,  35 
Conn.  351 
V.  Woods,  128  N.  Y.  35 
First  Religious  Society  v.  Stone, 

7  Johns.  112 
Fish  V.  Miller,  Hoff.  Ch.  267 
Fisk  V.  Cushman,  6  Cush.  20;  S. 

C.  52  Am.  Dec.  761 
Fiske  V.  Hazzard,  7  R.  I.  478 
Fitch  V.  Fitch,  8  Pick.  480 

V.  Rathbun,  61  N.  Y.  579 
Fitts  V.  Fitts,  14  Tex.  443 

r.  ]Morse,  103  Mass.  154 
Fitzgerald  v.  Fitzserald,  10  Gr. 

Ch.  (U.  C.y  410 
Fitzhugh  V.  Anderson,  2  Hen.  & 
M.  289 
r.  Beale,  4  Munf.  186 
Flanders  v.  Blandy,  45  Ohio  St. 
108 

t^.  Blandy,  415  Ohio  St.  108, 113     2 
Flanigan  v.  Flanigan,  115  Pa.  St. 

233  191,  210 

Fleming's  .Aijpeal.  5  Phila.  351  612 
Flesher  «.  Mitchell,  5  W.  Va.  59  543 
Fletcher  v.  Ashlev,  6  Gratt.  332 

480,  489,  490 
V.  Fletcher,  4  Hare,  67  370,  425 
V.  Fletcher,  .55  Vt.  325  165 

Flint  V.  Pattee,  33  N.  H.  520  268 

Florv  V.  Dennv.  7  Exch.  581  107 

Flower's  Case,' Noy,  67  170 

Flower  v.  Marten,  2  Myle  &  Cr. 

459  262 

Fogg    *;.   Middlfton,   Riley,    Ch. 

193  420 


440 

268 

274 

27 
228 

274 
461 


344 
59 

541 

53 

49,  212 

575 

384 


182 
75 

415 


Table  of  Cases  Cited. 


635 


P'olger  V.  Heidel,  (JO  Mo.  284  82 

Foltz  V.  West,  103  Ind.  404  614 

Forbes  v.  Forbes,  6  W.  R.  92;  S. 

C.  3  Jur.  N.  S.  1206  436 

V.  Jason,  6  Bradw.  395  70 

Force  v.  Haines,  2  Harr.  (N.  J.) 

385  83 

Ford's  Estate,  1  P.  &  B.  (N.  B.) 

551  556 

Estate,  28  Leg.  Int.  221  ;  S. 
C.  11  Pliila.  97  611 

Ford  V.  Aiken,  1  Strobli.  L.  93  220 
V.  Eliingwood,  3  Met.  359  607 
V.  McElray,  1  Rich.  Eq.  474  55 
V.  Thompson,  1  Met.  580  534 

Foreman  7-.  Bigelow,  4  Cliff.  508    366 
Forney  r.  Rem'ev,  77  la.  549  170 

Forrest  ;•.  Forrest,  11  Jur.  N.  S. 
317;  S.  C.  34  L.  J.  Ch. 
428;  13  W.  R.  380;  11  L. 
T.  N.  S.  763  592 

Forrester  v.  Moore,  77  Mo.  651       546 
Forshaw  v.  Welsby,  30  Beav.  243 

93,99 
Fortesque  r.  Barnett3  Myl.  &  K. 
36 ;  2  L.  J.  Ch.  N.  S.  106 

171,  248,  256,  428 
Forward  v.  Armstead,  12  Ala.  124 

377,  423 
Foster  v.  Emerson,  5  Gr.  Ch.  (U. 

C.)  135  381,  391 

V.  Hale,  3  Ves.  696.  386 

Foss  V.  Lowell,  etc.,  Bank,  111 

Mass.  285  319 

Fourth  Parish  v.  Root,  18  Pick. 

318  224 

Fowkes  r.  Pascoe,  10  L.  R.  Ch. 
343;  S.  C.  44  L.  J.  Ch. 
367 ;  32  L.  T.  545 ;  23  W. 
R.  538  532,  574,  575 

Fowler  v.  Lockwood,  3  Redf.  465 

193  227 
V.  Roundtree,  10  Fla.  299  '  609 
V.  Stuart,  1  M'Cord  L.  504 

191,  205 
Fowlerlv  v.  Butterlv,78  N.  Y.68  ; 

R."  C.  34  Am.'Rep.  507  265 

Fox's  Will,  52  N.  Y.  530;   S.  C. 

94  U.  S.  315  59 

V.  Edwards,  38  la.  215  471 

V.  Fox,  15  Ir.  Ch.  89        547,  555, 

574,5(8,591,592,  596 

Foxcroft  V.  Lister,  Gilb.  Rep.  4 

Prec.  Ch.  517,  526  nom.        403 
Frame  v.  Frame,  32  W.  Va.  463 

111,  125,  389,  404 
France  v.  France,  4  Halst  Eq.  ( N. 

J.)  650  380 

Francis  «.  Love,  63  Mich.  181  181,  215 


Francis  v.  New  York,  etc..  Ele- 
vated R.  R.  Co.,  17  Abb. 
N.  C.  1  361 

Frankford  Bank  v.  Johnson,  24 

Me.  490  56 

Eraser  v.  Dupres,  15  Low.  Can. 

Jur.  Ill  80 

Frazier  v.  Perkins,  62  N.  H.  69        78 

Frederick  v.  Haas,  5  Nev.  3S9        546 

French  v.  Davis,  38  Miss.  167         613 

V.  French,  46  Vt.  357  605 

V.  Holmes,  67  Me.  186  472 

V.  Quincv,  3  Allen,  9  60 

V.  Raymond,  39  Vt.  623 

21,  27,  29,  105,  321 
Freeland  ?;. Hastings,  10  Allen.  570  59 
Freeman  v.  Burnhani,  36  Conn. 

469  468 

V.  Flood,  16  Geo.  528  219 

V.  Freeman,  43  N.  Y.  34  ;  S.  C. 
3  Am.  Rep.  657,  aiiirming 
5  Barb.  306  376 

V.  Freeman,  8  Amer.  L.  Reg. 

(X.  8.)  29  380 

V.  Hartman,  45  111.  57 

480,  490,  499 
t'.  Pope,  L.R.5Ch.  538;S.C. 
L.  R.  9  Eq.  206 ;  39  L.  J. 
Ch.  (N.  S.)  148 ;  21  L.  T. 
(N.  S.)  816  4(18 

Freemantle  v.  Bankes,  5  Ves.  79  49 
Frenke  r.  Aucrbach,  72  Md.  580  594 
Frey  v.  Heydt,  116  Pa.  St.  601  51(1 
Frideau  v.  Frideau,  8  Mart.  707  \W 
Frisbie  v.  IM'Cartv,  1  Stew.  &.  Por. 

56  170,  174 

Fritz  r.  Brustle,  41  Leg.  Int.  4  94 
Froro's  Appeal,  105  Pa.  St.  258  254 
Fro-t  V.  Frost,  33  Vt.  639  60,  66 

Fruhauf  v.  Bendheim,  127  N.  Y. 

587  •19 

Fuller  r.  Dame,  18  Pick.  472  5S 

V.  Ferguson,  26  Cal.  574  llK) 

Fulton  V.  Fulton,  48  Barb.  581 

3,  106,  121 

Furinan  r.  Tenny,  28  Minn.  77      472 

Fur.'jaker  r.  Robinson,  I're.  Ch. 

475;  S.  C.  1  Eq.  Cas.  Abr. 

123,  pi.  9  440,  523 

Fuselier  v.  Masse,  4  I^.  423        (jS,  72 

Gadbury,  Lire,  11  W.  R.  895;  S. 
C.  32  L.  J.  Ch.  780 

267,  570,  571 
(^Taff  r.  Flesher,  33  Ohio  St.  107  3(<i 
(hiillard  v.  Duke,  57  Ala.  619  (ill 

(iaines  v.  (iaines,  9  B.  Mon.  2!t5  4'.»4 
Gainor  /•.  Gainor,  26  la.  337 

480,  484,  485,  494 


63G 


Table  of  Cases  Cited. 


Galbraith  v.  McLain,  84  111.  379    541 
Gale  ('.  Wells,  12  Barb.  84  461 

Gallaudet's  Case,  9  Ct.  of  CI.  210 

8a,  174 
Gamble  v.  Dabney,  20  Tex.  60         12 
Ganiuion  Theological  Seminary 
r.  Robbing,  128  Ind.  85 
67,  105,  109,  111,  114,  117,  120, 
172,  255,  268,  27(i,  286 
Gannon  r.  White,  2  Ir.  Eq.  K. 

207  256, 418 

Gano  V.  Fink,  43  Ohio  St.  462 

23,  43,  87,  136,  140 
Gardner  v.  Gardner,  1  Giti".  126     211 
V.  Gardner,  22  W^end.   526, 

reversing  7  Paiee,  112  260 

V.  Merritt,  32  Md.'78 

72,  86, 140,  147,  423 
V.  Parker,  3  Madd.  185 

21,37,38,41,  115,235 
Garner  v.  Germania  Life  Ins.  Co., 

110  N.  Y.  266  436 

V.  Graves,  54  Ind.  188        86,  213 
Garnons  v.  Knight,  5  B.  &  C.  671  425 
Garnsey  v.  Mundy,  24  N.  J.  Eq. 
243  ;  S.  C.  19  Amer  L.  Re«r. 
345  93,  99,  437,  447,  448 

Garrard  v.  Lord   Lauderdale,  3 

Sim.  1 ;  8.  C.  2  R.  &  M.  451  436 
Garrett  v.  Wilkinson,  2  De  G.,  G. 

&  Sm.  244  532,  569 

Garrick  v.  Tavler,  7  Jor.  (N.  S.) 
1174  ;  S.  C.  10  W.  R.  49  ; 
4  L.  T.  (N.  S.)  404 ;  31  L. 
J.  Ch.  68,  affirming  7  Jur. 
(N.  S.)  116  ;  30  L.  J.  Ch. 
211;  9  W.  R.  181;  3  L.  T. 
(N.  S.)  460 ;  29  Beav.  79 ; 
48  G.,  F.  &  J.  159  357 

Garrigne  v.  Home,  etc..  Society, 

■  3  Ind.  App.  91  274,  286 

Gartside  v.  Pahlman, 45  Mo.  App. 

160  110,  111 

Garvin  v.  William?,  44  Mo.  465 

451,461,462 
Gaskell  v.  Gaskell,  2  Yong.  &  J. 

501  89,257,311,436 

Gason  v.  Rich,  19  L.R.Irish,  391 

243,  254 
Gass  V.  Gass,  1  Heink.  613      546,  549 
(!.  Simpson,  4  Coldw.  288 

27,  31,  35,  98,  140 
Gaugh  II.  Henderson,  2  Head.  627 

549 
Gault  V.  Trumbo,  17  B.  Mon.  682    86 
Gaunt  t'.  Tucker,  18  Ala.  27  36,  45,  46 
.  Gaurd  r.  Bradley,  7  Ind.  600  71 

(niw  V.  Huffman,  12  Graft.  628       615 
Gay  V.  Kingsley,  11  Allen,  345         51 


PAGE 

Geary  v.  Page,  9  Bosw.  290  311 

Gee  V.  Gee,  32  Misp.  190  515,  549 

V.  Liddell,  35  Beav.  621  424 

Geibley  v.  Cox,  1  Ves.  Sr.  517        464 
General  Exchange  Bank  v.  Hor- 
ner, 39  L.  J.  (Ch.)  3i)3      57,  58 
George,  In  re,  23  Abb.  N.  C.  43       333 
V.  Harris,  4  W.  H.  533      275,  280 
V.  Howard,  7  Price,  646 

247,  356,  592 
Geraw,  Ex  parte,  10  N.  B.  512 

247,  307, 323 
Gerrish  v.    New   Bedford,    etc.. 
Bank,  128  Mass.  159  ;  S.  C. 
35  Am.  Rep.  365  180,  324 

Gerry  v.  Home,  130  Mass.  350       320 
V.  Stinson,  60  Me.  186  547 

r.  Stoneham,  1  Allen,  319         58 
Gescheidt    v.    Drier,    20   N.  Y. 

Supp.  11  1C7 

Giannoni  v.  Gunny,  14  La.  Ann. 

632  90 

Gibson  v.  Carson,  3  Ala.  421  487 

V.  Foote,  40  Miss.  788  547 

('.  Jeyes,  6  Ves.  266  456,  461 

Giddings  v.  Giddings,  51  Vt.  227 ; 

S.  C.  31  Am.  Rep.  682  269 

Gilbert  v.  Overton,  2  Hem.  &  M. 

110  429 

V.  Overton,  4  N.  R.  420;  2 
Hem.  &  M.  110;  10  Jur.  N. 
S.  721  ;  33  L.  J.  Ch.  683 ; 
12  W.  R.1141;  10  L.  T.  & 
S.  900  428 

V.  Wetherell,  2  Sim.  &  St. 
254  565 

Gilchrist  r.  Stevenson,  9  Barb.  9 

428,  426 
Gillan  r,  Metealf,  7  Cal.  137  228 

Gillian  v.  McCormack,  85  Tenn. 

597  543 

Gillespie  v.  Burleson,  28  Ala.  551 

118,  156,  200,  213,  217 

?•.  Holland,  40  Ark.  28  459 

V.  Piatt,  6  Phila.  485  581,  583 

V.  Walker,  56  Barb.  185  213 

Gilman  v.  Riopelle,  18  Mich.  145  405 

Giluiore  ;'.  Whitesides,  Dudiov 

Eq.  14  110,  116 

V.  Hayworth,  26  Texas,  89  3 

Gilson  V.  Hutchinson,  120  Mass. 

27  495 

Glanton  v.  Whitaker,  75  Ga.  523    593 

Glass  V.  Burt,  8  Ontario,  391  226 

V.  Gaines,  17  S.  W.  Rep.  161 ; 

S.  C.  15  S.  W.  Rep.  877 

379,  397 
Glenn,  Ex  parte,  20  S.  C.  (!4 

562,  565,  610,  612 


Table  of  Cases  Cited. 


637 


PAGE 

Glenn  v.  Noble,  1  Blackf.  104         292 
Glover,  In  re,  2  Johns.  &  Hem. 

186  419 

V.  Alcott,  11  Mich.  470  52 

Goddard  v.  Carlisle,  9  Price,  169    44.S 

V.  Snow,  1  Ru.«s.  490  479,  481,  487 

Godel  V.  Taylor,  Wright  (Ohio) 

82  468 

Godsal  V.  Webb,  2  Keen,  99  429 

Gold  V.  Vaughn,  4  Sneed,  245  536,  603 
Goldicutt  V.  Townsend,  28  Beav. 

445  440 

Golding  r.  Golding,  82  Ky.  51  52,  464 
Gooch,  In  re,  62  L.  T.  384 ;  S.  C. 
W.  N.  C.  (1890)  59 ;  6  T. 
L.  Rep.  224  592 

Goodson  V.  Whitfield,  5  Ired.  Eq. 

163  480, 489 

Goodtitle  v.  Acker,  1  Burr,  133      373 
Gordon  r.  Barkelew,  2  Hal.  Ch. 

551,  552 

V.  Gordon,  1  Met.  285  590 

V.  Green,  10  Ga  534  88,  182 

Goree  v.  Walthall,  44  Ala.  161        156 

Goring  r.  Nash,  3  Atk.  186  440 

Gosling  r.  Gosling,  3  Drew.  335 

267,  433,  521 
Gosnahan  v.  Grice,  15  Moo.  P.  C. 

223  195 

Goss  i\  Singleton,  2  Head.  67     71,  74 
Gould  V.  Raymond,  57  N.  H.  260    59 
Gourley  v.  Linsenbigler,  51  Pa. 
St.  345 

27,  28,  34,  42,  140,  241,  296 
Graham  v.  Graham,  1  Ves.  272      415 
V.  Lambert,  5  Humph.  595      420 
Grand  Lodge  of  Good  Templars 
V.  Farnham,  70  Cal.  158 

279,  280 
Grangiac  r.  Arden.  10  Johns.  293 

5,  105,  107,  164,  187,  241 
Grant,  In  re,  2  Storv,  312  ;  S.  C.  5 

L.  Rep.  11     '  52,468 

V.  Grant,  34  Beav.  623  ;  S.  C. 
34  L.  J.  Ch.  641 ;  11  Jur. 
N.  S.  787;13  L.  T.  721 ;  13 
W.  R.  1057  50,  118 

Grantham  v.  Grantham,  34  S.  C. 

.504  53 

Grattan  v.  Appleton,  3  Story,  754 ; 

S.  C.  8  L.  Rep.  116  27 

V.  Grattan,  18  111.  1()7 

511,  594,  603,  604 
Graves  v.  Speddcn,  46  Md.  527  615 
Grav  V.  Bailev,  42  Ind.  349  541 

■i'.Barton;55N.Y.68;S.C.14 
Am.  Rep.  181 

1,  205,  241,  263,  383 
V.  Nelson,  77  la.  63  262 


pac;e 
Graysbook  v.  Fox,  Plowd.  277  5U2 
Grazebrook    v.  Percival,  14  Jur. 

(O.  S.)  1103  493 

Green  c.  Carill,  4  Ch.  Div.  882  ;  S. 

C.  46  L.  J.  Ch.  477  65,  112,  305 
V.  Goodall,  1  Coldw.  404  480,  488 
V.  Green,  34  Kan.  740  497 

V.  Hathaway,  36  N.  J.   Eq. 

471  580 

V.  Howell,  6  W.  &  S.  20."^.  r.09,  610 

V.  Langdun,  28  Mich.  221  71, 128, 

130,  181,  244,  262,  2()3 

t'.  Walker,  99  Mo.  68  614 

Greene  v.  Ward,  1  Russ.  262 ;  S.  C. 

4  L.  J.  Ch.  99  182 

Greenfield's  Estate,  14  Pa.  St.  489 

86,  376,  420,  447,  461 
Gregorv  ?'.  Winsten,  23Gratt.  102 

480,  482,  485,  489,  490,  495,  566 
Greiner's  Appeal,  103  Pa.  St.  89  601 
Grenier  v.  Leroux,  1  Leg.  News, 

231  91 

Grev  V.  Grey,  22  Ala.  233       511,  5»i:^. 
564,  51»:; 
V.  Grev,  1  Ch.  Cas.  296  54;» 

V.  Grey,  2  Swan.  594         549,  553, 
554,  555,  579 
V.  Grey,  57  N.  Y.  552,  revers- 
ing 2  Lans.  173      190,  227,  259 
Grice  v.  Pearson,  7  La.  Ann.  94        64 
Gridley  v.  Lafavette,  etc.,  Ry.  Co., 

71  111.  200  57 

V.  Watson,  53  111.  186  46S 

Griffin  v.  Kemp,  46  Ind.  172  288,  2<.il 

r.  Stadler,  35  Tex.  695  1!I9 

Griffiths  r.  Robins,  3  Madd.  191 

448,  455 
Griggs  V.  Staplee,  2  De  G.  &  Sni. 

572  482 

Griggsby  v.  Osbom,  82  Va.  371  3S5. 

387,  395,  376,  400,  403,  404,  (H)S 

Grim's  Appeal,  105  Pa.  St.  375      tiO'.t 

Groom  v.  Thomson,   13   Kv.  L. 

Rep.  223  '  519 

Gross  r.  Gross,  1  Irish  Eq.  3S9 

(1877)  1-9 

Grove  v.  Jeager,  60  III.  249  21;; 

r.  Speddcn,  46  ]\Id.  527  552 

Groves  v.  Groves,  24  Pick.  261  ; 
S.  C.  35  Am.  Dec.  319 

184,  240. 256 
V.  Groves  3  Young  &  J.  163 

370,  b\(\ 

Grvmes  v.  Hone,  49  N.  Y.  17 ;  S. 

'      C.  10  Am.  Rep.  313    27.  29,  .T5. 

.38,  41,  140,  169,  194,  205.  .34S 

Gulick  v.  Gulick,  39  N.  J.  Eq.  401    4.-.«i 

GuUett    V.   Lamberton,    1    Eng. 

(Ark.)  109  5 


638 


Table  of  Cases   Cited. 


Guynn  v.  McCauley,  32  Ark.  97 

375,387 

Hackney  v.  Vrooman,  62  Barb. 

6o0  106,  197,  223,  243,  260,  424 
Haden  v.   Haden,   7  J.  J.  Mar. 

168  _  603, 605 

Hatrgerty  v.  Corri,  5  La.  Ann.  433     (> 
Hagler  v.  McCombs,  66  X.  C.  345 

528,  563 
Haines  v.  Haines,  6  Md.  435  376 

Halbert  v.  Halbert,  21  ]Mo.  277 

78,  79,  182 

Hale  V.  Lamb,  2  Eden,  292  431 

Hall,  In  re,  14  Ontario,  557      511,  51t) 

V.  Davis,  3  Pick.  450         600,  609 

i;.  Carraichael,  8Baxt.  211       480 

V.  Hall,  14  L.  R.  Eq.  365  ;  S.  C. 

8  Ch  App.  430    99,  437,  448 
V.  Hall,  107  Mo.  101  ;  S.  C.  17 
S.  W.  Rep.  811 

522,  550,  552,  553,  590,  591 
t;.  Hill,  1  Dru.  War.  94,  133; 

S.  C.  4  Ir.  Eq.  R.  27  538 

V.  Howard,  Rice  L.  (S.  C.) 

310  86,  268, 271 

V.  Knappenberger,  97  ^lo.  509 

444,  446,  451 
V.  Young,  37  N.  H.  134  546 

Hallum  r.  Gourie,  1  Sneed,  368      182 
Halsa  V.  Halsa,  8  Mo.  303  389 

Halsey  v.  Peters,  79  Ya.  60     376,  400 
Ham   V.   Van  Orden,  84  N.  Y. 

257  131 

Hambrooke  r.  Simmons,  4  Russ. 

Ch.  25  19,  44,  98,  231 

Hamden  v.  Rice,  24  Conn.  350        59 
Hamer  v.  Hamer,  4  Strobh.  Eq. 

124  600,  602 

V.  Sidnay,  57  Hun,  229  65 

Hamilton  v.  Armstrong,  20  S.  W. 

Rep.  1054  443 

V.  Bradley,  5  Hayn.  127  549 

V.  Hamilton,  5  Litt.  28  397 

V.  Hamilton,  2  Rich.  Eq.  355  471 
V.  Rus.'^ell,  1  Cranch,  97  467 

V.  Smith,  47  la.  15 

480,  489,  492,  495 
Hamilton  College  v.  Stewart,  I 

N.  Y.  581  285 

Hammersley  v.  De  Biel,  12  CI.  & 

F.  45,  affirming  3  Beav.  469  384 
Hammett  v.  Hammett,  16  S.  E. 

Rep.  293  594 

Hammonds  v.  Barclay,  2  East, 

227  300 

Hamlyn  v.  Nesbit,  37  Ind.  284    576 
Hamor  r.  Moore,  8  Ohio  St.  239 

115,  268 


Hanncr  v.    Sheehan,   19   N.  Y. 

Supp.  698  328 

V.  Winburn,  7  Ired.  Eq. 

142  5H5,  611,  612 

Hansbroutrh  v.  Hove,  12  Leigh. 

316^  514 

Hansen  v.  Brvan,  10  Ga.  167 

121, 187,  199 
Hanson  v.  Millett,  55  Me.  184        106 
Hardesty  v.  Richardson,  44  Md. 
617  ;  S.  C.  22  Am.  Rep.  57 

376,  379,  386, 387,  402 
Hardin  v.  Baird,  6  Litt.  340  420 

Hardy  v.  Van  Harlingen,  7  Ohio 

■  St.  208  4(53 

Hare  on  Contracts,  182,  183  101 

Hargroves  v.  Freeman,  12  Ga.  342    96 
Harley  v.  Harley,  57  Md.  342 

511,  515,  5(M,  575,  596 

Harmon  v.  Harmon,  63  111.  512     473 

V.  James,  7  Ind.  2a3  64 

V.  Osgood,  151  Mass.  501      41,  46 

r.  Ryan,  10  La.  Ann.  661  469 

Harness  r.  Harness,  49  Ind.  384 

576,  577 
Harper  v.  Harper,  92  N.  C.  300 

551,  590 
V.  Parks,  63  Geo.  705  84,  516,  517 
r.  Pierce,  15  La.  Ann.  666  6 

Harris's  Appeal,  2  Grant  (Pa.), 

304  564,  582 

Harris  r.  Allen,  18  Ga.  177     609,  610 
r.  Clark.  3N.  Y.93;  S.  C.  51 
Am.  Dec.  352;  2  Barb.  94 
23,  27,83,86,104,  105,  107,  243, 
271,  302,  304,  307 
V.  Currier,  44  Vt.  468  83 

V.  Harris,  69  Ind.  181 

518,  564,  593 
V.  Hopkins,  43  Mich  272 

203,  204,  227 
V.  Mclntyre,  118  111.  275  546 

r.  Mcl^ran,  30  Miss.  533         182 
V.  Tremenbeere,  15  Ves.  34 

453,  456 
Harrison  v.  Harrison,  15  S.   E. 

Rep.  87  377 

r.  Wright,  100  Ind.  515 ;  S.  C. 

50  Am.  Ryp.  805  289,  291 

Harrison's  Will,  1  B.  Mon.  351      449 

Harvev  v.  Carroll,  72  Tex.  63        400 

r.  Hunt,  119  Mass.  279  36-5 

V.  Pt-nnybacker,  4  Del.  Ch. 

445  547 

V.  West,  87  Geo.  553  407 

Harrington  v.  Moore,  3  Jones  L. 

56  528 

Hart  V.  Chase,  46  Conn.  207  563 

V.  Hart,  3  Des.  Eq.  592  376 


{ 


Table  of  Cases   Cited. 


G;39 


PAGE 

Hart  V.  Robertson,  21  Cal.  346  49 

Hartman's  Entate,  2  Thorn.  62      136 
Hartwell  v.  Jackson,  7  Tex.  576     369 
V.  Rice,  1  Gray,  587 

538,  581,  582,  586 
Haskell  v.  Hervey,  74  Me.  192  9 

Hassell  r.  Basket,  8  Biss.  303; 
affirmed,  107  U.  S.  602; 
S.C.  108  U.S.  267  241 

V.  Tynte,  Ambl.  318  231,  127,  243 
Hatch  V.  Atkinson,  56  Me.  324 

135,  186,  194,  205 
V.  Hatch,  9  Ves.  292  455,  461, 462 
i\  Lamos,  63  N.  H.  1  66,  228 

V.  Straight,  3  Conn.  31 

4,  198,  552,  576,  590 
Hatfield  v.  Minet,  8  L.  R.  Ch. 
136;  S.C.47L.  J.  Ch.  612; 
38  L.  T.  N.  S.  629 ;  26  W. 
R.  701,  reversing  L.  J.  Ch. 
812  562 

Hatterslev  v.  Bassett,  25  Atl.  Rep. 

332  590 

Hatton  V.  Jones,  78  Ind.  466  255,  434 

V.  Landman,  28  Ala.  127  549 

Hauser  v.  King,  76  Va.  731  468 

Haven  &  Thompson,  8  C.  E.  Gr. 

321  539 

Havens  v.  Thompson,  11  C.  E. 

Gr.  383  541 

Haverstock  v.  Sarbaoh,  1  W.  &  S. 

390  575,  577,  596 

Hawkins  v.  Blewitt,  2  Esp.  663     111 
V.  Lee,  22  Tex.  544  49 

Hawley  v.  James,  5  Paige,  318 

535,  603 
Haxton  r,  McClaren,  132  Ind.  235  613 
Hav  V.  Hav,  3  Rich.  Eq.  384  230 

Hay's  Case,  L.  R.  10  Ch.  A  pp.  593   57 
Hayden  v.  Burch,  9  Gill  (Md.), 

79  536,  549 

V.  Havden,  142  Mass.  448        329 
V.  Stiiison,  24  Mo.  182  182 

Havdock  r.  Havdock,  34  N.  J. 

Eq.  570     '  445,  447,  451 

Hayes  i'.  Alliance,  etc.,  Ins.  Co., 

L.  R.  8Ir.  149  (1881)       49,248 
V.  Hibbard,  3  Redf.  28  535 

V.  Jones,  2  P.  &  H.  (Va.)  583 

468,  469 

V.  Kershaw,  1  Sand  f.  258  422,  440 

V.  Kingdome,  1  Yern.  33         555 

Haygood  v.  Marlowe,  51  Ala.  478  105 

Hayne's  Case,  12  Coke  Rep.  113 

56,  159 
Haynes  v.  Jones,  2  Head,  373  60(i,  008 
Havslep  v.  Gvmer,  1  A.  &  E.  162  ; 

S.  C.  3  N.  &  M.  479  21 

Hays  7;.  Henry,  1  Md.  Ch.  337        496 


PAGE 

Hays  v.  Hibbard,  3  Redf.  28  53() 

V.  McConnell,  42  Ind.  2So         S3 
Headen  v.  Headen,  7  Ired.  Eq. 

159  529,  539,  601 

Headlev  v.  Kirbv,  18  Pa.  St. 
326;  S.  C.  I'Amcr.L.  Reg. 
(O.  S.)  25  40 

Heartlev  v.  Nicholson,  19  L.  R. 
Eq.  233  ;  44  L.  J.  Ch.  277  ; 
21  L.  T.  N.  S.  822  413,  420,  42.) 
Hebb  V.  Hebb,  5  (iill  (Md.),  5U(i 

16,  22,  26,  27,  29,  105,  204 
Hebert  v.  Winn,  24  I^.  Ann.  385    55 
Hedges  v.  Hedges,  Finch's  Ch. 
269;  S.  C.GibbEq.  12,  13; 
2Eq.Cas.Abr.  263;  2  Ver- 
non, 615;  7  Vin.  Abr.  13H 

15,  27,  105.  215 
Helfenstein's  Est.,  77  Pa.  St.  328 

&S,  280 
Hellman  r.  Mc Williams,  70  Cal. 

449  436 

Helm  V.  Martin,  59  Cal.  57  8 

Henderson  v.  Adams,  .35  Ala.  723 

12,  176 
I'.  Bank,  40  Ch.  Div.  170;  S. 
C.  58  L.  J.  Ch.  197  ;  59  L. 
J.  856 ;  37  W.  R.  .3.32  58 

V.  Bank,  59  L.  J.  (Ch.)  794  57 
V.  Henderson,  21  :Mu.  37!t  42S 
V.  Hoke,  1  Dev.  &  B.  Eq.  119  546 
V.  McDonald,  84  Ind.  149  2 

Hendricks  v.  Snediker,  30  Tex. 

296  37(1 

Hendrickson  v.  Godsey,  54  Ark. 

155  65 

Hengst's  Estate,  6  AVatts,  ^^\  5M 

Hcnrv  v.  Fowler.  3  Dalv.  199  41 

V.  G  roves,  1  (5  ( i  rat  t .  244  8( ; 

V.  Harbison,  23  Ark.  25  217 

V.  Vi'nnillion,etc.,  R.  R.  Co., 
17  Ohio,  187  365 

Henschel  v.  Maurer.  69  Wis.  57(5; 
S.  C.  2  Am.  St.  Ro)).  757 

21,27,37,38,43 
Hensloe's  Case,  9  Rep.  39a  .■'Xi2 

Henson  v.  Kinard,  3  Strobh.  (S. 
C.)  Eq.  371 

2,  190,  206,  208,  217,  218,  ^2<i 
Hepworth  v.  Hepworth,  L.  R.  1 1 

Ya\.  10  50.1,  550.  55". 

Hergesheimer's  Estate,  3  Pa.  C. 

C.  R.  159  94 

Herkimer  v.  McGreg«3r,  126  Iml. 

247  •'>■"'•■' 

Herschfelt  v.  George,  G  Mich.  450  472 
Hertzog  v.   Hertzog,  29  Pa.  St. 

4(i5  ^"^ 

Hess  V.  Brown,  111  Pa.  St.  124         49 


640 


Table  of  Cases  Cited. 


PAGE 

Hesser  v.  Wilson,  36  la.  152  471 

Hewitt  V.  Kaye,  6  L.  R.  Eq.  198  ; 
S.  C.  37  L.  J.  Ch.  633  ;  16 
W.  R.  835  243,  302 

Hevdt  r.  Frev,  21  W.  N.  C.  265  516 
Hick  V.  Keats,  4  B.  &  C.  69  8,  222 
Hickman   v.  Grimes,   1    Marsh 

(Kv.),86  382 

Hibish  V.  Catherman,  64  Pa.  St. 

154  59 

Higert  v.  Asburv  University,  53 

Ind.326    *  275 

Hisfzins  v.  Jolinson,  20  Tex.  389    197 
'  v.  Riddel],  12  Wis.  587  275 

High's  Appeal,  21  Pa.  St.  283 

515,  564,  596 
High  V.  Stainback,  1  Stew.  (Ala.) 

24  213 

Higham  v.  Vanosdol,  125  Ind.  74 

518,  522,  .552,  563,  574 
Higinbotham  v.  Rucker,  2  Call. 

313  182 

Higman  v.  Stewart,  38  Mich.  513 

70,71 

Hildreth  v.  Eliot,  8  Pick.  293         436 

Hill  V.  Buckminister,  5  Pick.  .391  268 

V.  Chambers,  30  Mich.  422       376 

V.   Chapman,  2   Brown  Ch. 

612  125,  185 

V.  Duke,  6  Ala.  2.59  217,  219 

V.  Freeman,  73  Ala.  200  96 

V.  Hill,  3  Ves.  &  B.  183  523 

V.  Sheiblev,  64  Geo.  529    241,  259 
V.    Stevenson,    63   Md.  3(>4; 

S.  C.  18  Am.  Rep.  231    140,  317 
V.  Williams,  6  Jones  Eq.  242     80 
V.  AVilson,  L.  R.  8  Ch.  App. 
888;    S.  C.  42  L.  J.    Ch. 
817;  29  L.J.  238;  21  W.  R. 
557  10 

Hillabrent  v.  Bower,  6  Tex.  45 

115,  158,  1-59 
Hills  V.  Downton,  5  Ves.  557  523 

V.   Hills,  8    M.   &    W.  401; 
S.  C.  5  Jur.  1185  21 

Hilton  V.  Morse,  75  Me.  258  219 

Hine  v.  Hine,  39  Barb.  507  536 

Hindson  v.  Weatherill,  5  De  Grex, 

M.  &  G.  301  441 

Hinson    v.  Pickett,   1   Hill  Ch. 

(S.  C.)  35  9 

Hinton  v.  Hinton,  1  Dev.  &  Bat. 

Eq.  587  528 

Hitch  V.  Davis,  3  Md.  Ch.  266 

68,  106,  109,  117,  184,  205 
Hixon  V.  George,  18  Kan.  2.53  472 
Hoag  V.  Martin,  80  la.  714  469 

Hoak  V.  Hoak,  5  Watts,  80      581,  584 
Hoar  V.  Hoar,  5  Redf.  637  320 


Hobart  v.  Hobart,  58  Barb.  296     614 
Hobbs    V.    Blandford,   7    T.    B. 

Mon.  469  480,  483,  484 

Hodges  V.  Spicer,  79  N.  C.  223       371 
Hodgson  r.  Macy,  8  Tnd.  121  552 

Hoge  V.  Hoge,  1  Watts,  163  438 

Hoggatt  V.  Gibbs,  15  La.  Ann.  700 

96,  540 
Hoghton  V.  Hoghton,  15  Beav.  278 

447,  461,  462 
Hogue  V.  Bierne,  4  W.  Va.  658 

170,  175 
Hoig  V.  Adrain  College,  83  111.  267  370 
Holder  v.  Lafavette,  etc.,  Rv.  Co., 

71  111.  106  *  56 

Holeman  v.  Hart,  3  Strobh.  Eq. 

66  11 

V.  Fort,  3  St  rob.  Eq.  66  48 

Holladav   v.   Patterson,  5   Oreg. 

177  58 

Holland  v.  Alcock,  108  N.  Y.  312  430 
V.  Lewiston,  etc..  Bank,  -52  Me. 
564  56 

Hollister  v.  Attmore,  5  Jones  Eq. 

373  533, 562 

Hollev  V.  Adams,  16  Vt.  206 ;  S.  C. 

'42  Am.  Dec.  508  27,271 

HoUidav  v.  Atkinson,  5  Earn.  & 
C.  501 ;  S.  C.  8  Dowl.  & 
Rvl.  163  250,  268 

V.  White,  33  Tex.  460  510 

V.  Wingfield,  59  Ga.  206 

11,.518,  .519,  .522,  552 
Holloman  v.  Holloman,  12  La. 

Ann.  607  12 

Hollowav  V.  Headington,  8  Sim. 

324  439 

Hollo wel  V.  Skinner,  4  Ired.  L.  165  216 
Holmes  v.  Cartier,  5  Low.  C.  Rep. 

296  2 

V.  Holmes,  3  Paige,  363    495,  496 
V.  Patterson,  5  La.  693  171 

V.  Patterson,  5  Mart.  693  100 

Holt  V.  Holt,  59  Me.  464  2,  89 

Homes  r.  Dana,  12  Mass.  190         277 
Homiller's  Estate,  17  Phila.  513; 
S.  C.  42  Leg.  Int.  488 ;   17 
W.  X.  C.  238  520,  576 

Hood  V.  Jones,  5  Del.  Ch.  77  470 

r.  Lynn,  1  Allen,  103  58,  .59 

Hooe  V.  Harrison,  11  Ala.  499        217 
Hook  V.  Hook,  13  B.  ]VIon.  526 

562,  606,  607,  608 

Hooker  r.  Axford,  .33  Mich.  453      52 

Hooper  v.  Evles,  2  Vern.  480  591 

V.  Goodwin,  1  Wils.  Ch.  212; 

S.  C.  1  Swanst.  486 

63,  64,  65, 106,  109,  122,  254,  359 

Hope  V.  Harman,  11  Jur.  1097       425 


Table  of  Cases  Cited. 


641 


I 


Hopkinpon  v.  Forster,  L.  R.  19 

Eq.  74  291 

Hopkins  v.  Manchester,  16  R.  I. 

663  230,  243 

Horn  V.  Gartman,  1  Fla.  63 

2,  119,  174,  177 
Horner's  Appeal,  2  Penny.  289  134 
Hosmer  r'.  Sturges,  31  Oliio  St. 

657  610 

Houghton,  In  re,  17  Ves.  251  546 

V.  Houghton,  34  Hun,  212 

93,  226,  374 
House  V.  Grant,  4  Lan?.  296 

227,  241,  268 
r.  Woodward,  5  Coldw.  196 

511,  564,  606 
Houser  v.  Singiser,  1  Leg.  Chron. 

(Pa.)  145  87,  93 

Howard  r.  Hooker,  2  Ch.  Cap.  81  47H 

t'.  Copley,  10  La.  Ann.  504   12,  72 

V.  Samples,  5  Dana,  306  175 

V.  Savings  Bank,  40  Vt.  597 

71,  420 
V.  Williams,  1  Bail.  L.  fS.  C.) 

575  157,  159,  471 

V.  Windham    Co.    Savings 
Bank,  40  Vt.  597  313,  321 

Howard  CoUecre  v.  Pace,  15  Ga. 

486         "  88 

Howell  V.  EUsberrv,  79  Geo.  475    408 

1'.  Howell,  59  Geo.  145      199,  444 

*'.  I^nsom,  1  N.  Y.  Leg.  Obs. 

11  456 

Howe  V.  Howe,  99  Mass.  88  450 

Howes  )'.  Prudential  Assurance 

Co.,  49  L.  T.  N.  S.  133     249,  250 
Hoxie  V.  Price,  31  Wis.  82  52 

Hoyes  ?'.  Kinder^rlev,  2  Sm.  &  G. 

195  "  574 

Hubbard  v.  Allen,  59  Ala.  283  97,  377 
Tiuber  v.  Huber,  10  Ohio,  371  369 
Huddleston  r.  Huey,  73  Ala.  215  105 
Hudson  r.  Green  Hill  Seminary, 

113  111.  618  276 

V.  Hudson,  3  Rand.  117     606,  609 
Huffman  v.  Huffman,  118  Pa.  St. 

58  400 

Hufsmith's  Estate,  65  Pa.  St.  141  594 
Hughes's  Appeal,  57  Pa.  St.  179  613 
Hughey  v.  Eichelberger,  11  S.  C. 

36  6,  539,  606,  608,  612 

Hughes  V.  Berrier,  70  Geo.  273      407 
V.  Hughes,  72  Geo.  173 

322.  387,  405,  407 
V.  Hughes,  1  Lev.  233 ;  S.  C. 
Carter,  125  ;  2  Black.  Com. 
515  503 

V.  Roper,  42  Tex.  116  468 

V.  Seanor,  18  W.  R.  108  552 

41 


Hughes  V.  Stubbs,  1  Hare,  476 ; 

S.  C.  6  Jur.  831       420,  434,  436 
V.  Stubbs,  11  Jur.  N.  S.  913  ; 
S.  C.  13  L.  T.  N.  S.  492  48,  423 
Huguenin  v.  Baselv,  14  Ves.  299 

99,  445,  448,  4.53,  461 
Hugus  V.  Walker,  12  Pa.  St.  173 

405,  407 
Hull  r.  Hull,  2  Strobh.  Eq.  174  55 
Hulton  V.  West.,  etc.,  Rv.  Co.,  L. 

R.  23  Ch.  Div.  6.54  57 

Hummel  v.  Hununel,  80  Pa.  St. 

420  551, 594 

Hunley  r.  PInnley,  15  Ala.  91         106 

Hunnewell  r.  Lane,  11  Met.  1))3    345 

Hunt  r.  Hunt,  119  Mass.  474  187 

V.  Johnson,  44  N.  Y.  27;  S. 

C.  4  Am.  Rep.  631    53,  273,  369 
V.  iNLathews,  1  Vern.  408 ;  S. 
C.  Eq.  Pa.  Ab.  59.  pi.  5479,  489 
Hunter  v.  Hunter,  19  Barb.  ()31 

64,  as,  70.  73, 107, 109,  121,  140, 
196,  204,  225,  307,  446,  451,  456 
Huntiuirton  v.  (iilmore,  14  Barb. 

243        27,  42,  45,  98,  107,  121, 
133,  140,  144,  185 
Huntly  V.  Huntly,  6  Ired.  Eq. 

514  213 

Hurdle  v.  Elliott,  1  Ired.  L.  176  5:» 
Hurlbut  r.  Hurlbut.  49  Hun,  1S9  22!) 
Hurlev  v.  Tavlor,  7S  Mo.  23S  468 

Hurst" r.  Beach,  5  Madd.  .351  2m 

Huston  r.  Cantril,  11  Leiuh,  136    4as 
V.  Markley,  49  la.  162  189 

Hutchins  v.  Smith,  46  Bar)).  2^5  278 
Hutchinson's  Appeal,  47  Pa.  St. 

84  610 

Hutman's  Estate,  30  Pitts.  L.  J. 

385  516 

Hylton  V.  Hylton,  2  Yes.  Sr.  547 

461,462 
Hynscn  r.  Terrv,  1  Ark.  83.  87 

2,  m,  75,  170 

Ide  r.  Pierce,  134  IVIass.  260  8 

Illinois  Co.  r.  Hough,  91  111.  63  57 
Imperial,  etc.,  Assn.  r.  Coleman, 

L.  R.  6  II.  L.  189  57,  .5.K 

Ingersole  (•.Trueb.jdy,40  Cal.603  213 
Ingram  v.  Phillips,  5  Stn)b.   L. 

200  468.  471 

Ireland  r.  Geraghty.  11  Biss.  46-5  4:J0 
Irish  V.  Nutting,  47  Barb.  370 

2,  22,  2(1,  .33,  34.  62.  76 
Irons  r.  Smallpiece.  2  B.  A  Aid. 

551  108,  \il\  170,  190 

Irvine  r.  Greer,  .32  <  Iratt.  411        213 

r.  :Marshall.  7  Minn.  286  546 

Irwin  V.  Dvke,  114  111.  302      376,  387 


642 


Table  of  Cases   Cited. 


PAGE 

Isaac  V.  Williams,  3  Gill,  278  186 

Isenhart  v.  Brown,  2  Edw.  Ch. 

341  271 

Isham  V.  Delaware,  etc.,  R.  Co., 

3  Stockt.  (N.  J.)  227  436 

Ison  V,  Ison,  5  Rich.  Eq.  15 

521,   562,606,611 
Ivalt  V.  Finch,  1  Taunt.  141  199 

Ives  V.  Sterling,  6  Met.  310  274 

Ivey  V.  Owens,  28  Ala.  641 

161,  165,  185 
Izard  V.  Middleton,  1  Bail.  S.  C. 

Eq.  228  470,  471 


Jaggers  v.  Estes,  3  Strobh.  Eq. 

379 
Jahns  V.  Nolting,  29  Cal.  507 
Jacks  V.  Tunno,  3  Deasus.  1  157, 
Jacki^on  v.  Combs,  7  Cow.  36 

V.  Jackson,  28  Miss.  674   601, 
V.  Matsdorf,  11  Johns.  91 
V.  Pike,  9  Cow.  69 
V.  Rogers,  2  Cai.  Cas.  314 
V.  TM-entv-third  St.  R.  W. 

Co.,  15  J.  &  S.  (N.  Y.)  85 
V.  Twentv-third  St.  Rv.  Co., 
88  N.  Y.  520 

64,  106,  120,  226,  355, 
Jacobus  V.  r»Iunn,  37  N.  J.  Eq.  48 
James  v.  Allen,  3  Merriv.  16 
r.  Deya,  16  Ala.  221 
V.  Holmes,  31  L.  J.  (N.  S.)  Ch. 

567 
V.  James,  41  Ark.  301        528, 
V.  James,  76  N.  C.  331 
V.  McKinsey,  4  J.  J.  Mar.  625 
Jacques  v.  Four'thman,   137   Pa. 

St.  428 
Jaques  v.  Methodist  Episcopal 
Church,  17  Johns.  549 ;  S. 
C.  8  Am.  Dec.  477 
Jarry  v.  Trust  &  I^an  Co.,  11  L. 

Can.  Rep.  7 

Jayne  v.  Murphy,  31  111.  App.  28 

Jeans  v.  Cooke,  24  Beav.  513 ;  S. 

C.  4  Jur.  N.  S.  57  ;  27  L.  J. 

Ch.  202  520,  550,  591, 

.  Jeffervs  ?'.  Jetferys,  1  Cr.  &  Ph. 

'138  370, 

Jenkins  v.  Jenkins,  1  Mill.  (S.  C.) 

48 
Jennings  r.  Blocker,  25  Ala.  415 
V.  Jennings,  2  Heisk.  283 
r.  Selleck,'  1  Vern.  467      549, 
Jennv  v.  Jennv,  24  Vt.  324     480, 
Jewett  V.  Salisbury,  16  Md.  370 
r.  Shattuck,  124  I^Iass.  590 
Jervoise  v.  Jervoise,  17  Bev.  566 
Jiggitts  V.  Jiggitts,  40  Miss.  718 


172 
192 
468 

49 
613 
591 

60 
391 


321 

57 

60 

109 

458 
549 
553 
397 

231 


211 

53 

98 


596 
439 

87 
202 
593 
569 
490 
274 
345 

50 
495 


PAGE 

Joeckel  r.  Joeckel,  56  Wis.  436      228 
Johnson  r.  Alden,  lo  La.  Ann. 

505  48,  89 

r.  Ball,  5  De  G.  &  Sm.  85  ;  S. 
C.21L.  J.  N.S.Ch.210;  16 
Jur.  538  248 

V.  Belden,  20  Conn.  322   509,  556, 
562,  563,  574,  577,  583,  594,  595 
V.  Burford,  .39  Tex.  242  197 

V.  Dougherty,  18  N.  J.  Ch. 

406  *  546 

V.  Ghost,  11  Xeb.  414  7.  222 

V.  Grifhn,  80  Geo.  551  392,  407 
V.  Hoyle,  3  Head.  56  556,  563 
V.  Johnson,  Hayes,  322  417 

V.  Johnson,  Walk.  Ch.  309  213 
V.  Lusk,  6  Coldw.  113 ;    S.  C. 

1  Tenn.  Ch.  3.  266,  267 

V.  Patterson,  13  Lea.  626 

556,  596,  610 
V.  Quarles,  46  :Mo.  423  546 

V.  Smith,  1  Ves.  Sr.  314  36,  44 
V.  Spies,  5  Hun,  468  190, 197,  241 
V.  Stevens,  22  La.  Ann.  144  87 
V.  Waters,  111  U.  S.  (>40  182 

Johnston  v.  Dilliard,  1  Hay.  (S. 

C.)  232  217 

V.  Johnston,  4  Ired.  Eq.  9        535 

V.  Wabash  College,  2  Ind. 

555  ■  274 

Jones'  Estate,  29  Pitts.  L.  Jr.  89     563 

Jones,  In  re,  6  Biss.  68  52 

r.  Ashburnham,  4  East,  455    275 

V.  Briscoe.  24  Mo.  498  218 

V.  Brown,  34  N.  H.  439        23,  51 

V.  Clark.  59  Geo.  136 

376,  387,  392,  405, 407 
V.  Cole,  2  Bailey  L.  330 

481,  490,  489 
V.  Dever,  16  Ala.  221 

106,  140,  241,  255,  264 
V.  Jones,  46  la.  466  541 

V.  Kinnear,  4  R.  &  G.  (Nov. 

Sco.)  1  596 

V.  Lock,  1  L.  R.  Ch.  25  ;  35 
L.  J.  Ch.  117  ;  13  L.  T.  K 
S.  514;  11  Jur.  N.  S.  913; 
14  W.  R.  149  297,  417,  422,  424 
r.  Morgan,  6  La.  Ann.  630       469 
V.  Morri^-on,  31  ^linn.  140  56 

V.  Obenchain,  10  Gratt.  259 

49,.S69,  371,425,  428 
V.  Powell,  1  Eq.  Cas.  Abr.  84  271 
V.  Richardson,  5  ]\Iet.  247  536,538 
r.  Tvler,  6  Mich.  364  375 

1).  Selbv,  Fincli.  300 

27,  43,  44,  98,  174,  233 
Jordan  v.  Black,  ]\Ieigs,  142 

480,  484,  488,  489 


Table  of  Cases   Cited. 


643 


PAGE 

Jordan  r.  Miller,  47  Ga.  346  611 

V.  Money,  5  H.  L.  Cas.  185 ; 

S.  C.  23  L.  J.  Ch.  865  384 

V.  Murray,  3  Call.  85  106 

Joyce  V.  Hamilton,  111  Ind.  163 

533,  575,  576 
V.  Hutton,  11  Ir.  Ch.  123         440 
Joynes  v.  Denny,  Busbee  Eq.  176 

480,  490 
Judd  V.  Esty,  6  Low.  Can.  Rep.  12  74 

Kane  v.  Desmond,  63  Cal.  464 

49,  150,  468 
Karr  v.  Read,  23  Gr.  Ch.  525  247 

Kay  V.  Crook,  3  Sm.  &  G.  407  440 
Keaton  ?;.  Jordan,  52  Ga.  300  544 

ij.  Miller,  38  Miss.  630  217 

Kee  V.  Vasser,  2  Ired.  Eq.  553  49 
Keeler  v.  Fas^ett,  21  Vt.  539  49 

Keene  v.  Beard,  8  C.  B.  N.  S.  380  291 
V.  Macey,  4  Bibb.  35 

7,  8,  182,  217,  219 
Keenv  v.  Handrick,  23  Atl.  Rep. 

'  1068  231 

Keffer  v.  Keffer,  27  C.  P.  U.  C. 

257  381,391 

Keiley  v.  Kennard,  60  K  H.  1  60 
Kekewick  v.  Manning,  1  De.  G., 
M.  &.  J.176;  S:C.  21L.J. 
Ch.  N.  S.  577  ;  16  Jur.  625 
147,  173,  417,  419,  428,  429,  431 
Kellog,  In  re,  1  Silver  (N.  Y.)  Ct. 
App.  313,  affirming  39 
Hun,  275  469 

Kellogg  V.  Adams,  51  Wis.  138 

86, 150,  152,  160 
Kelly  V.  Campbell,  2  Abb.  Ajjp. 

Dec.  492  213 

V.  Dawson,  2  Moll.  87  211 

V.  McGratt,  70  Ala.  75  ;  S.  C. 
45  Am.  Rep.  75 

480,  488,  490,  495 
V.  Rogers,  1  Jur.  N.  S.  514        490 
Keiley  v.  McCallum,  83  N.  C.  563  612 
Kemper  v.  Kemper,  1  Duv.  (Ky.) 

401  36 

Keingon  v.  Rautigam,  43  Conn.  17  72 
Kendrick  ;'.  Taylor,  27  Tex.  695  469 
Kenistan    r.    Sceva,    54    X.    H. 

24,37        21,27,32.36,106,191, 

19(),  204,  241 

Kennedy  ''.  Badgett,  26  S.  C.  591    602 

V.  Ten  Broeck,  11  Bush.  241    464 

V.  Ware,  1  Barr,  445  431 

Kennev  v.  Public,  2  Bradf.  319      127 

V.  tucker,  8  Mass.  142  541 

Kenninirham   v.  McLau^lilin,  3 

Mon.  80  ■"  49 

Kennv  v.  Udall,  5  Johns.  Ch.  464  493 


Kent  V.  Lyon,  4  Fla.  474  468 

Kentucky  Baptist  Education  So- 
ciety r.  Carter,  72  111.  247     278 
Kentucky  Female  (^rj^hun  School 

r.  Fleming,  10  Bu.sh.  234      274 
Kerr  r.  Dickinson,  7  Sup.  Ct.  Rep. 

of  N.  S.  W.  12  591 

Kerrigan  v.  Rantiyan,  43  Conn. 

17  160,  309,  3:I3.  4(>8,  409 

Kershaw  r.  Kershaw,  102  111.  307  541 
Kersten  r.  Lane,  22  Clr.  Ch.  547 

445,  457 
Kessinger  v.  Kessinger,  37  Ind. 

341  460 

Kettle  r.  Townsend,  1  Salk.  187  52.3 
Keyer  v.  Carleton,  141  Ma-^s.  45  437 
Keyl  V.  Westerhaus,  42  Mo.  App. 

49  31,65,  tM 

Kid  V.  Mitchell,  1  Nott.  &.  MlC 

334  159 

Kidder  v.  Stevens,  60  Cal.  414        443 
V.  Kidder,  33  Pa.  St.  268  66 

Kiddill  V.  Farrell,3  Sni.  it  tJ.  428  428 
V.  Farrell,  3  Jur.  (X.  S.)  786; 
S.  C.  26L.J.  Ch.  818  359 

Kiff  V.  Weaver,  94  N.  C.  274 ;  S. 
C.  55  Am.  Rep.  (501;  34 
Alb.  L.J.  11  1,22.27.10-}. 

239,  241,  242,  243,  252,  473 
Kilbv  r.  Godwin,  2  Del.  Ch.  61 

1,  22,  52,  140 
Killinger  v.  Reidenhauer,  6  S.  A 

R. 531  495 

Kilpatrick  v.  Graves,  51  Miss.  4.32    Ml 
V.  Penrose,  etc.,  Co.,  49  Pa.  St. 
118  56 

Kilpin  V.  Ratley  (1892),  12  B.582  5(i2 
Kilwick  V.  ^Maidiuau,  1  Burr.  59  2 
Kimball  v.  Leland,  110  M;us<.  ;;25 

198,  310 

King's  Estate.  6  Wliart.  370  562 

21  L.  K.  Q.  27.S  422 

King  V.  Cotton,  .More,  259       487,  4S9 

V.  Johnson,  2  Hill  Ch.  624         55 

V.  O'Brien,  1  J.  .t  S.  (N.  Y.) 

49  212 

r.  Thompson,  9  Pet.  204  3S0 

r.  Woi-sloy,  2  Hay.  366  (.-m9)   (i06 
Kingdon  v.  Bridges,  2  Vern.  67 

.5V),  570,  571 
Kingsbury's  Appeal,  44  Pa.  St. 

4(]0"  552, 590 

Kinnaman  r.  Pylo.  44  Ind.  275  .5.3 
Kinsley  v.  International,  ilc.t  'o., 

41  111.  App.  259  274.  279 

Kintz  r.  Friday,  4  Dem.  540.  543 

511.  5(«,.5!)4 
Kintzel  v.  Kintzel,  13;J  Pa.  St.  71 

121,  132 


644 


Table  of  Cases  Cited. 


Kirby's  Appeal,  109  Pa.  St.  41        517 
Kircudbright    v.    Kircudbright, 

8  Ves.  51  559,  G02 

Kirk  V.  Eddowes,  3  Hare,  509 

531,  593 
Kirkpatrick  v.  Davidson,  2  Kelly 

(Ga.),297  176,182,546 

V.  Finney,  30  La.  Ann.  223 

106, 150 
V.  McDonald,  1  Jour.  387      420 
Klein  v.  Wolfsohn,  1  Abb.  N.  C. 

134  487 

Kline  v.  Kline,  57  Pa.  St.  120        458 
Kline's  Estate,  64  Pa.  St.  122        458 
Knabb's  Estate,  30  Leg.  Int.  361 ; 
S.  C.  1  Leg.  Chron.  337 

575,  594 
Knapp  V.   Hungerford,  7  Hun, 

588  377 

Knight  V.  Oliver,  12  Gratt.  33 

601,  605 
V.  Yarborough,  4  Rand.  566    606 
Knott  V.  Hogan,'4  Met,  (Kv.)  99 

67,  86,  119 
Knye  v.  Moore,  1  Sm.  &  Stu.  61 

415,  426 
Kober  v.  State,  10  Ohio  St.  444  7 

Kramer  v.  Kramer,  68  la.  567  91 

Krebs  v.  Krebs,  35  Ala.  293  609 

Kreider  v.  Bayer,  10  Watts,  54      517 
Kunkle  v.  Franklin,  13   Minn. 

127  59 

Kurtz  V.  Smithers,  1  Dem.  399 

17,  207,  227,  241,  251 
Kutz  V.  Hibner,  55  111.  514 ;  S.  C. 

8  Am.  Rep.  665  376 

Kyle  V.  Conrad,  25  W.  Va.  760 

540,  606,  610,  611 

Labbe  v.  Abat,  2  La.  553  100 

Lackman  r.  Wood,  25  Cal.  147       473 
Lade  v.  Shepard,  2  Str.  1004  373 

Ladies'    Colletriate    Institute    v. 

French,'  16  Gray,  196  274 

Lady  Cox's  Case,  lb.  339  271 

Lady   Gorge's    Case,  cited   Cro. 

Car.  550 ;  2  Swanst.  600       569 
Lady  Superior  v.  McNamara,  3 

Barb.  Ch.  375;    S.   C.  49 

Am.  Dec.  184  71 

Lafayette,  etc.,  Co.  v.  Cheeney, 

87  111.  446  57 

La  Favette  Countv  v.  Magoon, 

73  Wis.  627  '  '  282,  286 

Lafleur  v.  Girard,  2  Low.  Can. 

Jur.  90  86 

Lafollett  V.  Kyle,  51  Ind.  446         376 
Lake  Superior  Iron  Co.  v.  Drexel, 

90  N.  Y.  87  366 


Lalonde    v.    St.    Denis,    3    Leg. 

News,  415  81 

Lamb  v.  Carroll,  6  Ired.  L.  4  606 

Lambe  v.   Orton,   1  Dr.  &  Sm. 

125  428, 429 

Lambert   v.  Overton,  13  W.  R. 

227;  S.  C.  11  L.  T.  (N.  S.) 

503  351 

Lammons  v.  Allen,  88  Ala.  417 

468,  491 
Lamplugh    v.   Lamplugh,    1    P. 

Wms.  Ill  549,  553,  555 

Lampi'ey  v.  Lamprey,  29  Minn. 

151  263,  370,  418 

Lance  v.  Norman,  2  Ch.  Rep.  79  479 
Land  v.  Jeffries,  5  Rand.  211  480,  493 
Landon  v.  Turner,  11  Leigh,  403  182 
Landrum  v.  Russell,  29  Geo.  405  228 
Lane  v.  Ewing,  31  Mo.  75  420,  428 
V.  Lane,  76  Me.  521  49,  126,  151 
V.  Moore,  151  Mass.  87  444 

Langdon  v.  Allen,  1  W.  N.  Cas. 

395  268 

V.  Astor,  16  N.  Y.  140  513 

Lange  v.  Richoux,  6  La.  560  54 

Langford  v.  Nabers,  86  Ga.  449      583 

Langlev  v.  Thomas,  26  L.  J.  Ch. 

609  178 

Langston  v.  Bates,  84  111.  524; 

S.  C.  25  Am.  Rep.  466 

376,  377,  400,  402 
Lansing  v.  Russell,  13  Barb.  510  447 
Lanterman  v.  Abernathv,  47  111. 

437  ■  423 

Largent  v.  Berrv,  3  Jones  L.  531  515 
Larimore  v.  AVells,  29  Ohio  St.  13  196 
I^ark  V.  Cunningham,  7  Rich.  L. 

57  197,  217 

Larkin  v.  Hardenbrook,  90  N.  Y. 

333 ;  S.  C.  43  Am.  Rep.  176  261 
Lansdale's  Estate,  29  Pa.  St.  407  428 
Latham  v.  Henderson,  47  111.  185  54(5 
Latourette  v.  Williams,  1  Barb.  9  49 
Lathrop  v.  Knapp,  27  Wis.  214 

275,  278 
Lavender  v.  Prichard,   2  Hay, 

293-337  115 

Law  V.  Carter,  1  Beav.  426  266 

V.  Henrv,  39  Ind.  414  389 

V.  Russell,  2  R.  I.  244  577 

V.  Smith,  2  R.  I.  244 

574,  575,  587,  600,  606 
Lawrence  ?;.  Lindsav,   68  N.   Y. 

108  "  538 

Lawson's  Appeal,  23  Pa.  St.  85  516 
Lawson  i\  Lawson,  1   P.  Wms. 

441  ;  S.  C.  2  Eq.  Cas.  Abr. 

575,  pi.  4  269,  299,  304 

V.  Richards,  6  Phila.  179  292 


Tabic  of  Cases   Cited. 


G45 


Leach  v.  Duvall,  8  Buah.  201 

480,  481,  489,  494 
Leblanc  v.  Bertrant,  16  La.  Ann. 

294  517 

Le  Couteaulx  v.  Buffalo,  33  N.  Y. 

333  GO 

Leche  v.  Kilmorey,  Turn.  &  Russ. 

207  78 

Lechmere  v.  Earl  of  Carlisle,  3  P. 

Wnis.  222  271 

Lee  V.  Bank  of  British  N.  A.,  30 

C.  P.  U.  C.  255  307,  323 

V.  Book,  11  Gratt.  182       260,  519 
V.  Luther,  3  Wood  &  M.  519 

27,  04,  106,  109,  413,  421,  424 
V.  Magrath,  10  Ir.  Rep.  (1882) 

45,  226,  241,  313 
Leeke's  Case,  L.  R.  10  Ch.  App. 

469  57 

Leicester  v.  Foxcraft,  1  L.  C.  Eq. 

768  403 

Leland  r.  Walker,  23  Mich.  324  52 
Lemon  v.  Wright,  31  Geo.  317  83 
Lench  v.  Lench,  10  Ves.  511  590 

Lentz  V.  Hertzog,  4  Whart.  520 

552,  555,  561 
Leonard  v.  "Nve,  125  Maps.  455  2 

Lerow  v.  Wilniarth,  9  Allen,  382   468 
Lester  v.  Lester,  28  Gratt.  737        376 
V.  Foxcroft,  1  Colle's  P.  C. 
108 ;  P.  C.  2  Vern.  nom.       403 
Levering  r.  Rittenhouse,  4  Whart. 

130  hCA,  577 

Lewellin  v.   Cobbold,   1   Sm.  & 

Griff.  376  482,  487 

Lewis's  Appeal,  127  Pa.  St,  127 

549,  522 

lewis's  Est.,  139  Pa.  St.  640  128 

Lewis  V.  Amer,  44  Tex.  319  171 

V.  Bolitho,  6  Grav,  137  473 

V.  Merritt,  113  N.  Y.  386 ;   S. 

C.  42  Hun,  161  194 

Light  r.  Scott,  88  111.  239  436 

Lightfoot  V.  Colgin,  5  Munf.  42     496 

Liginger  v.  Field,  78  Wis.  367 

541,  543 
Limerick  Academy  v.  Davis,  11 

Mass.  113  274,  281 

Lindell  v.  Rokes,  60  Mo.  249  ;  S. 

C.  21  Am.  Rep.  395  254 

Linder  v.  Carpenter,  62  III.  309  58 
Lindsay  v.  Piatt,  9  Fla.  150 

528  530  532 
LinelU'.  Linell,6C.E.Gr.8i  "  '539 
Lines  v.  Lines,  142  Pa.  St.  149 

77,92,  180,474 
Linker  v.  Linker,  32  N.  J.  Eq. 

174  213 

V.  Smith,  4  Wash.  224  480 


LinnendoU  v.  Doe,  14  Johns.  222  7 
Lipscomb  v.  Nichols,  6  Col.  290  54(; 
Lishey.  v.  Lishey,  2  Tenn.  Ch.  5  52 
Lisloli'  V.  Hart,'  25  Miss.  245 

515,  541J 
Lister  v.  Hodgson,  L.  R.  4  Eq. 
Cas.  30 ;  S.  C.  15  W.  R.  547 

371,  447 
V.  Sisters,  35  N.  J.  Eq.  49 

197,  199,  213 
Little  r.  Dawson,  4  Dall.  Ill  83 

r.  Willets,  55  Barb.  125 

107,  181,  lS;j 
r.  AVilletts,  37  How.  Pr.  481 

52,  151 
Littleton  v.  Littleton,  1  Dev.  &.  B. 

327  496,  601 

Livingston  v.  Livingston,  29  Neb. 

167,  178  2 

Lobdell  t.  Lobdell,  36  N.  Y.  327  ; 
S.  C.  33  How.  Pr.  347 ;  4 
Abb.  Pr.  (N.  S.)  56  380 

Loader  v.  Clarke,  2  ^l&c.  &  G.  382  492 
Loan  Asi50.  r.  Stonemetz,  29  Pa.  St. 

534  5<) 

Lockard  v.  Becklev,10  W.  Va.  87  541) 
Lockett  r.  Meenis,  27  Ga.  207  218,  222 
Loffus  r.  Maw,  :5  Giff.  592;  S.  C. 
32  L.J.  Ch.  49;  8  Jur.  N. 
S.  607  ;  6   L.  T.  N.  S.  346 ; 
low.  R.  513  4;i2 

Logan  V.  Logan,  13  Ala.  653  6Cil 

V.  Sinunons,  3  Ired.  Eq.487 

480,  4S6,  489,  4'>1 

r.  Sinnnons,  1  Dev.  &  But.  L. 

13  4>0 

Lohff  r.  Germer,  37  Tex.  578  1 7 1 

Lloyd  *'.  Brooks,  34  Md.  27  422 

V.  Harvev,  2  R.  &M.310,316  5<t.t 

r.  Reed,  1  P.  Wms.  607    523,  553 

Tx)ndon,  etc.,  R.  R.  Co.  v.  Fair- 

clough,  2  M.  &  Gr.  674         107 
Long  V.  Long,  2  Pcnnv.  (Pa.)  180  549 
r.  Long,  16  (ir.  Ch.  (Can.)  239 ; 

S.  C.  17Ib.251  97 

V.  Long,  118  111.  6.38 

.534,  541,. 542,  586 
Lord  V.  Hough,  43  Cal.  5S1  49(5 

Lord  Chichester  r.  Coventry,  L. 

R.  2  H.  L.  71  515 

Lord    Glengall    r.    Barnard,     1 

Keen,  769  5<_t.3 

Lorimer  v.  Lorimer,  10  Ves.  367  ;i-i6 
Ix)ring  /•.  Blake,  10()  Ma.«.«.  592  684 
Lott  V.  Kaiser,  61  Tex.  665 

.549,  .590,  .591,  .593 
Love  V.  Dillev,  64  Md.  238 ;  S.  C. 
1  F>ast.   Rep.  697;   6  Atl. 
Rep.  168  259 


646 


Table  of  Cases   Cited. 


Love  V.  Francis,  63  Mich.  181 

68,  69,  114,  177,  185,  193,  199, 
225,  265,  399,  418 
Low  V.  Carter,  1  Beav.  426  571 

V.  Foss,  121  Mass.  531  286 

Lowell  V.  Oliver,  8  Allen,  247  59 

Lowry  v.  McGee,  3  Head.  269  423 
Lowther  v.  Lowther,  30  W.  Va. 

103  158,  163 

Lucas  r.  Lncas,  1  Atk.  270  49,  50,  740 
Lunn  r.  Thornton,  1  C.  B.  379  107 
Liintz  V.  Greve,  102  Ind.  173  53 

Lux  V.  Hoff,  47  111.  425  213 

l^vnch  r.  Hainault,  5  Low.  Can. 

Jur.  306  2 

Lvnn  v.  Asliton,  1  R.  &  J\L  188        52 
V.  Bell,  10  Ir.  Rep.  C.  L.  487    291 
Lyon's  Est.,  70  la.  375 

519,  531,  538,  594 
Lvon  V.  Green  Bay,  etc.,  R.  Co., 

42  Wis.  538  211 

V.  Marclay,  1  Watts  (Pa.),  171  93 

McAfee  v.  Busby,  69  la.  328   150,  471 
V.  Ferguson,  9  B.  INIon.  475 

480,481,489 
McAllister  v.  Butterfield,  31  Ind. 

25  593,  594 

M'Auley  r.  Billenser,  20  Johns. 

89  ^  275,  278 

McBride    v.  Thompson,   8    Ala. 

650  202 

M'Cabe's  Estate,  6  Pa.  C.  C.  R.  42 

307,  325 
McCabe  r.  Robertson,  18  C.  P. 

U.  C. 471  307,  323 

McCampbell    v.  McCampbell,  2 

Lea,  661  213 

McCarthy  v.  ]McCarthv,  36  Conn. 

177  '  91 

McCartney  v.  Bostwick,  32  K. 

Y.  53  546 

McCarty  v.  Koarnan,  86  111.  291  38 
]\TcCarven's  Estate,  7  AV.  X.  C. 

261  27 

M'Caw  V.  Blewit,  2  McC.  Ch.  90 

600,606,  011,612 
McClanahan  v.  McClanahan,  14 

S.  E.  Rep.  419  590 

McClintock  v.  Loisseau,  31  W. 

Va.  865  549,  552,  554 

McCloskey  v.  McCloskev,  29  La. 

Ann.  237  86 

M'Clunev  v.  Lockhart,  1  Bail.  L. 

117  191 

V.  Lockhart,  4  M'Cord,  251  63,  231 
McClure  v.  Lancaster,  24  S.  C. 

273  211 

V.  McClure,  1  Barr  (Pa.),  374  387 


PACE 

McClure  v.  Miller,  1  Bailev  Eq. 

107    222,  225,  480,  482,  490,  489 
V.  Wilson,  43  111.  356  278 

McCluskey  v.  Provident  Institu- 
tion, 103  Mass.  300  345 
McCord  V.  iMcCord,  11  Rev.  Le<j. 

510  ;  S.  C.  5  Leg.  News,  342    6 
V.  McCord,  77  Mo.  166 

24,  105,  107,  124 
McCormick  v.  Malin,  5  Blackf. 

509  453 

McCoy  V.  Hyatt,  80  Mo.  130  49 

V.  Pearce,  Thouip.  Cas.  (Tenn.) 

145  552 

McCraw  v.  Edwards,  6  Ired.  Eq. 

202  12,  105 

McCrav  v.  IMcCray,  30  Barb.  633  376 
McCulfouch  V.  Bland,  2  Giff.  428 ; 

S.C.  6  Jur.  N.  S.  1183;  3 

L.  T.  N.  S.  357 ;   9  W.  R. 

657  238 

McCullough  V.  Walker,  20  Ala. 

389 '  12 

M'Cutchen  r.  M'Cutchen,9  Port. 

(Ala.)  650  172 

McDearman  r.  Hodnett,  83  Ya. 

281         528,  556,  575,  577,  596, 601 
McDermott's  Appeal,  106  Pa.  St. 

358  314 

McDonald  ?'.  Donaldson,  47  Fed. 

Rep.  765  350 

t'.  Grav,  11  la.  508  278,281 

?;.  Rose,  17Gr.  Ch.657  398 

M'Donnell  v.  Hesilrige,  16  Beav. 

346  479 

McDonogh  Will  Case,  15  How. 

367  60 

McDoutrald  v.  King,  1  Bail.  Ch. 

1.54  '534,606,610,611 

McDowell  V.  Lucas,  97  111.  489 

377,  399,  404 
M'Dowell  V.  IMurdock,  1  Nott.  & 

McC.  2.37  105,110 

McEachran,  In  re,  82  Cal.  219        4(i9 
]\Ic  Ed  wards  v.   Ross,  6  Gr.  Ch. 

373  212 

M'Elwee  v.  Martin,  2  Hill  L.  406   226 
M'Ewen  v.  Troost,  1  Sneed,  185 

170,  174,  370 
M'Fadden  v.  Jenkvns,!  Ph.  153 ; 

12  L.  J.  N.'S.  Ch.  146;  7 

Jur.  27,  affirniinir  1  Hare, 

458;    11    L.   J.    N.   S.  Ch. 

281  ;  6  Jur.  501  429,  433 

McFall  V.  Sullivan,  17  S.  C.  504      594 
McFarlane  v.  Flinn,  8  Nov.  Sco. 

Dec.  141  66, 162 

McFerran  v.  McFerran,  69  Ind. 

29  540 


Table  of  Cases  Cited. 


G47 


McGee  v.  McGee,  4  Ired.  L.  105     49G 
McGrath  v.  Reynolds,  110  Mags. 

566  3 

McGinn    v.    Brawders,    1   Low. 

Can.  Jur.  176  81 

McGinnis  v.   Currv,   13  \\.  Ya. 

29  '  400 

V.  McPeake,  Pen.  (N.  J.)  291  551 
McGlade's  Appeal,  99  Pa.  St.  338 

296,  297,  804 
M'Gonnell  ?\  Murray,  3  Irijih  Eq. 

460  194,  195,'205.  231,  318,  .323 
McGovern  v.  Knox,  21  Ohio,  547  546 
McGrath  v.  Reynolds,  116  Mass. 

566  12,36,39 

McGregor  v.  Loomis,  1  Dis.  (Ohio) 

256  289 

^NIcGuire,  In  re,  1  Tucker,  196        460 

V.  Adams,  8  Pa.  St.  286  254 

T.  Allen,  18  S.  W.  Rep.  282        53 

McHugh  V.   O'Connor,   91   Ala. 

243  243 

Mclntire  v.  Hughes,  4  Bibb.  186 

371,  431 
M'Kane  v.  Bonner,  1  Bail  L.  (S. 

C.)  113  77,  85,  184,  200,  213 
McKav's  Case,  L.  R.  2  Ch.  Div.  1  57 
McKay  v.  ]\IcKav,  15  Gr.  Ch.  (U. 

C.)  371      '  331,388 

INIcKee  v.  McKee,  48  322,  392 

McKennan  v.  Philips,  6  Whart. 

571  25 

McKcnzie  v.   Downing,  25  Geo. 

669  301 

V.   Harrison,   120  ^^  Y. 

260,  265  2,  117,  129,  262 

]\IcLain  v.  White  Township,  51 

Pa.  St.  196  401 

M'Lean  v.  Longlands,  5  Yes.  Jr. 

71  2 

V.  State,  8  Heisk.  22  73 

V.  Weeks,  65  Me.  411  ;  S.  C. 

61  Me.  277  474 

:McT.ellan  v.  IMcI^an,  2  Head.  684  438 
iicLure  v.  Steele,  14  Rich.  Eq. 

105  522,  612 

]McMahnn  v.  McMahon,  55  L.  T. 

763  421 

^ilcMahill  V.  McMahill,  69  la.  115 

382,  522,  540,  552 
M'Meekin  r.  Brummett,  2  Hill 

Ch.  038  227 

^MoNauL'ht  V.  Anderson,  78  Geo. 

499  50 

:\IcXeil  V.  Hammond,  87  Ga.  618    535 
M'Nicol  ('.  M'Dougal,  17  C.  of  S. 

Cas.  25  307 

McPherson  v.  Rollins,  107  X.  Y. 

316  -130 


McRae  v.  McRae,  3  Bradf.  199 

539,  540,  .559 
M'Wade  v.  Broadhurst,  34  L.  T. 

N.  S.  924,  atliriuing  24  W. 

R.232  488 

McAYillie  v.  Yan  Yacter,  35  Miss. 

428  17.3, 471 

iMaber  v.  Hobbs,  2  Y.  &  Col.  317  480 
Mabie  v.  Bailey,  95  N.  Y.  206 

330, 333 
Mack  r'.  Mack,  5  T.  &  C.  (N.  Y.) 

528  158 

V.  Mechanics'  and  Farmers' 

Savings  Bank,  5  Hun,  477    328 
Mackav  v.  Douglass,  L.  R.  14  Eq. 

106,   120 ;  S.   C.  41    L.   .1. 

Ch.  (N.  S.)  539  ;  20  W.  R. 

652  ;  26  L.  T.  (N.  S.)  721      408 
Madden    v.  Day,  1  Bail.  L.  3.17 

159,  184.  409,  471 
Maddison  r.  Alderson,  8  L.  U. 

App.  Cas.  407  ;  52  L.  J.  Q. 

B.  737;  49  L.  T.  303;  31 

W.R.  820,  atiirmin-  7  L. 

R.  Q.  B.  Div.  174 ;  50  L.  J. 

Q.  B.  460 ;  45  L.  T.  334  ; 

29  W.  R.  550  432 

Madeira's  Ai)peal,  17  \V.  N.  C. 

202  l.'rt) 

Maguire  v.   Dodd,  9    Irish  Ch. 

(N.  S.)  452  92 

Mahan  v.  Baker,  26  Pa.  St.  519      3!>0 
r.  Jane.  2  P.ibb.  .32  03,  87 

V.  Mahan,  7  B.  Mon.  579 

175,  .371,431 
V.  United  States,  10  Wall. 

143  ;  S.  C.  8  Ct.  of  CI.  137      82 
Maiben  f.  Bobe,  6  Fla.  387  12 

Mallett  V.  Page,  8  Ind.  3(^1 

73,  174,2.50,515.549 
Malone,  In  re,  37  Ix-g.  Int.  03 ; 

S.  C.  38  Leg.  Int.  :5(i3  184 

Malone,  Estate  of,  30  Ix-g.  Int. 

t)3  150 

Malone's  Estate,  37  Leg.  Int.  QA ; 

S.  C.  38  Leg.  Int.  30.3  203 

Malone  r.   Reynolds,  2  Fox  & 

Smith  (lr.),59  HO 

Mallory  v.  Stodder,  6  Ala.  801  71 

Manders  v.  Manders,  4  Iri^h  l^]. 

434  -1'-^ 

Manes  v.  Durant,  2  Rich.  Ya\. 

404  4S0. 4.'^9 

Manly  v.  Howlett,  55  Cal.  94  370 

Mann  r.  jNIann.  2  Hich  L.  123        227 

7'.  Mann,  12  Heisk.  245  5(^1 

INIannimr    r.  Thurston,  59    Md. 

218  530,009 

Mannv  i:  Rixford,  44  P.l.  129  67 


648 


Table  of  Cases  Cited. 


Marcv  v.  Amazeen,  61  N.  H.  131 ; 
'  S.  C.  60  Am.  Rep.  320 

83,  335,  413 
]^Iarden  v.  Babcock,  2  Met.  99  468 
Markwell  v.  Markwell,  34  Beav. 

12  437 

Marling  v.  Marling,  9  W.  Va.  79 ; 

S.  C.  27  Amer.  Rep.  535       371 

Marsh  v.  Fuller,  18  N.  H.  360        133 

V.  Gilbert,  2  Redf.  465  609 

Marshall  v.  Berry,  13  Allen,  43  40,  45 

V.  Crutwell,  20  L.  R.  Eq.  328 ; 

S.  C.  4  L.  J.  Ch.  504  572 

V.  Dossett,  20  S.  W.  Rep.  810  456 
V.  Fulgham,  4  How.  (Miss.) 

216       •  173,  175 

V.  Jaquith,  1.34  Mass.  138  51 

V.  Rench,  3  Del.  Ch.  239 

534,  539,  593,  600 
Marston  v.  Lord,  65  N.  H.  4 

515,  602,  603,  613 
V.  Marston,  64  N.  H.  146    98,  184 
Martin  v.  Funk,  75  N.  Y.  134 ; 
S.  C.  31  Ainer.  Rep.  446 
105,  106,  134,  140,  180,  333,415, 
421,  423,  424,  425,  426,  427 
V.  McCord,  5  Watts,  493  401 

V.  Martin,  15  La.  Ann.  585  182 
V.  Ranisev,  5  Humph.  349  370 
V.  Smith,"  25  W.  Va.  579  241 

Martrick   v.   Linfield,    21    Pick. 

325  164 

Marx  V.  McGlynn,  4  Redf.  455     457 
Massey  V.  Huntington,  118  111.  80 

420,  424 
V.  State,  74  Ind.  .368  7 

Mason  v.  Holman,  10  Lea,  315 

140,  519,  520,  574,  575,  576 
r.  Mason,  12  La.  589  524 

Mathews  v.  Rentz,  2  Amer.  L. 

Rec.  371  86 

IMather  v.  City  of  OttaAva,  114  111. 

659  58 

Maunsell  v.  White,  4  H.  L.  Cas. 
10.39 ;  S.  C.  1  J.  &  L.  539 ; 
7Ir.  Eq.  R.413  384 

Maux,  etc.,  Co.  v.  Branegan,  40 

Ind. 361  ~  56 

Maverick  v.  Stokes,  2  Bay.  (S.  C.) 

511  54 

Maxwell  v.  Harrison,  8  Geo.  61     182 
V.  Maxwell,  109  111.  588 

549,  570, 590,  591 
May  V.  May,  36  111.  App.  77 

63,  64,  192 
Mayer's  Appeal,  77  Pa.  St.  482  213 
Mavor,  Ex  parte,  34  L.  J.  Bkcy. 

25  467 

JIayo  I'.  Carrington,  19  Gratt.  74     86 


Meach  v.  Meach,  24  Vt.  591 

24, 40,  208,  373 
Meadows  v.  Meadows,  11  I  red  L. 

148  511,533,559,607,  608 

Mears  v.  Bickford,  55  Me.  528  2 

Medlock  v.  Powell,  96  N.  C.  499      162 
Meek  v.  Kettlewell,  1  Ph.  342 ;  S. 

C.  1  Hare  464;  13  L.  J.  N. 

S.  Ch.  28 ;  11  L.  J.  N.  S.  Ch. 

293,  464  ;   7  Jur.   1120 ;    6 

Jur.  550  173,  25.3, 425, 426,  429 
V.  Perry,  36  Miss.  190  461 

Meeker  v.  Meeker,  16  Conn.  383 

84,  519,  553 
Meiggs  v.Meiggs,15Hun,  453  89,  436 
Melvin  v.  Lamar  Ins.  Co.,  80  111. 

446;  S.  C.  22Am.  Rep.  199 

365,  519,  614 
Mengel's  Appeal,  116  Pa.  St.  292  582 
Merchant  v.  Merchant,  2   Bradf. 

432  27,  41,  98 

Merchants*    National     Bank    v. 

State  Bank,  10  Wall.  604  290 
Mercer  i-.  Mercer,  29  la.  557  5,  64 
Meredeth    v.    Watson,    17    Jur. 

1063  243 

Meredith  v.  AVatson,  23  E.  L.  & 

Eq.  250  ;  S.  C.  2  Eq.  Rep.  5  26 
Meriwether  t'.  Morrison,  78  Kv. 

572  105,  140,  147 

Merkel's  Appeal,  89  Pa.  St.  340      520 
Merrick  v.  Peru  Coal  Co.,  61  111. 

472  56 

Merrill  v.  Rhodes,  37  Ala.  449 

574,  575,  581,  594 
r.  Rolston,  5  Redf.  220  457 

Merrills  t'.  Swift,  18  Conn.  257  ;  S. 

C.  46  Am.  Dec.  315  71 

Merriman  v.  Lacefield,  4  Heisk. 

209  553,  577 

Merritt  v.  Smith,  6  Leigh,  486        106 
Metcalf 's  Case,  L.  R.  13  Ch.  Div. 

169  57 

Methodist  Episcopal  Church   v. 

Jacques,  3  Johns.  Ch.  77  211 
Mevers  v.  Farquharson,  46  Cal. 

190  372 

Meyer's  Succession,  11  So.  Rep. 

532  612 

Michener  v.  Dal,  23  Pa.   St.  59 

22,  41,  43,  45,  46,  140,  148,  473 
Michigan,  etc.,  R.  R.  Co.  v.  Bacon, 

33  Mich.  466  278 

Middleton   v.  Middleton,  31   la. 

151  574,  575,  577,  590 

Miles  V.  Bovden,  3  Pick.  213  49 

Mill  V.  Wvman,  3  Pick.  207  268 

Miller's  Appeal,  31   Pa.  St.  337 

508,  510,  564,  610 


Table  of  Cases  Cited. 


649 


Miller's  Appeal,  40  Pa.  St.  57 

561,  582,  596 
107  Pa.  St.  221  553 

Miller's  Estate,  2  Brewster  (Pa.) 

355  601 

Miller's  Will,  73  la.  118         515,  601 
Miller  v.  Anderson,  4  Rich.  Eq.  1 

172,  176 
V.  Ballard,  46  111.  377  278 

V.  Billingsly,  41  Ind.  489  140,  146 
V.  Chittenden,  2  la.  315  58 

V.  Clark,  40  Fed.  Rep.  15  197,  320 
V.  Catten,  5  Geo.  341  404 

v.  Eastman,  11  Ala.  609    217,220 
V.  Hanover,  etc.,  R.  R.  Co.  87 
Pa.  St.  95 ;   S.  C.  30  Am. 
Rep. 349  365 

V.  Jetfrers,  4  Gratt.  472 

21,  105,  112, 127 
r.  LePiere,  136Mass.  20 

87,  115, 140,  167 
V.  Miller,  3  P.  Wms.  356 

21,  27,  156,  233,  234,  238,  239 

V.  Neflf,  3  W.  Va.  197  117 

Millican  v.  Millican,  24  Tex.  426     93 

Million  V.  Tavlor,  38  Ark.  428       459 

Millsv.  Von  Voorhies,  20  N.  Y. 

412  495 

Millspaugh  v.  Putnam,   16  Abb. 

Pr.  380  312 

Milner  v.  Freeman,  40  Ark.  62      547 
Milnes  v.  Rusk,  2  Yes.  Jr.  488        211 
V.  Sherwin,  33  W.  R.  927  11 

Milroy  v.  Lord,  8  Jur.  N.  S.  806 ; 
S.  C.  31  L.  J.  Ch.  798 ;  7  L. 
T.  N.  S.  178 ;  4  De  G.,  F.  & 
J.  264  129,  140,  412, 

416,  417,  419,  428 
Mims  V.  Lockett,  33  Geo.  9     387,  410 
V.  Ross,  42  Geo,  121  3,  395 

V.  Sturtevant,  18  Ala.  359 

170,  175,  184 
Minchin  v.  Merrill,  2  Ed.  Ch.  333 

2,201 
Minor  v.  Mechanics'  Bank,  1  Pet. 

46  56 

V.  Roeers,  40  Conn.  512 ;   S. 

C.  16  Am.  Rep.  ()9  72,  140, 

147,  180,  309,  333,  415,  418 

Minturn  v.  Fisher,  4  Cal.  35  292 

V.  Seymour,  4  Johns.  Ch.  497  422 

Miskey's  Appeal,  107  Pa.  St.  611 

99,  448,  451,  459,  460 
Mitchell  ?'.  Homfrav,  8  L.  R.  Q. 
B.  Div.  587:"S.  C.  50  L.J. 
Q.  B.  Div.  460 ;  45  L.  T.  (N. 
S.)  694  :  29  W.  R.  558    450,  457 
V.  Mitchell,  8  Ala.  414 

506,  539,  561,  583,  603 


Mitchell  V.  Pease,  7  Cush.  350 

46,  47.3 
r.  Rvan,  3  Ohio  St.  377  71 

V.  Smith,  33  L.  J.  Ch.  596  ;  S. 
C.  12  W.  R.  941 ;  10  L.  T. 
(N.  S.)  801 ;  4  De  G.  J.,  &  S. 
422  38,  ISO 

Mohawk    Bank  v.  Atwator,    2 

Paige,  54  46S 

Mock's  Appeal,  68  Pa.  St.  231  342 
Monck  t.  Monck,  1  B.  &  B.  298  514 
Mondy  v.  JoUifle,  5  Myl.  (k  Cr. 

167  403 

Money  v.  Jordan,  2  De  G.,  "SI.  &. 
G.  318 ;  S.  C.  21  L.  J.  Ch. 
893  ".S4 

Monks  V.  ]\Ionks,  7  Allen,  401  6i() 
Monroe  r.  Barclay,  17  Ohio   St. 

302  4()0 

INIontgomery  v.  Chanev,  13  I-a. 

Ann.  207  '  509 

V.  Miller,  3  Redf.  154  aflirniod 
78  N.  Y.  282  106,  17(>,  241 

Montioy  v.  Maginnis,  2  Duv.  186 

534,  540 
Moodv  V.  Walker,  89  Ala.  619 

49,  473 
Moore  r.  Burrow,  89  Tenn.  101 

606,  60S,  610 
V.  Crafton,  3  Jan.  ct  S.  442       439 
V.  Darton,  4  De  G.  cS:  Sm.  517  ; 
S.  C.  20  L.  J.  Ch.  (N.  S.) 
626 ;  7  E.  L.  &.  Eq.  1.34 

24,  92,  128,  246,  261,  262 
V.  Downev,  3  H.  &  M.  (Va.) 

127        "  217,  220 

r.  Moore,  67  IVIo.  192        443,  445 
V.  :\Ioore,  18  L.  R.  Ya-  474 ; 
S.  C.  43  L.  J.  Ch.  617;  22 
W.  R.  729 ;  30  L.  T.  (N.  S.) 
752  243,  307,  351,  352,  423 

V.  Pierson,  6  la.  279 ;  S.  C.  71 

Am.  Dec.  409  6,  376,  3S6 

V.  Small,  19  Pa.  St.  461 

37(),  .380.  .386,  401,408 

r.  Ulster  Bank,  11  Jr.  C.  L. 

512(1877)  307,323 

V.  Webb,  2  B.  iNfon.  282  391 

Morgan,  In  re,  104  N.  Y.  74 

346,  519,  601 
Morgan  r.  Ball.  81  Cal.  93       4<vS.  -171 
V.  Hocker,  74  Cal.  540  4(>.'< 

V.  :\ralleson,  10  L.  H.  F-q. 
475;  S.  C.  39  L.  J.  Ch. 
680 :  23  L.  T.  N.  S.  3.36 ; 
18  AV.  R.  1125  ^     417 

Morisey  v.  Bunting,  1  Dov.  L.  3 

Morr's  Appeal,  SO  Pa.  St.  427        563 


650 


Table  of  Cases   Cited, 


Morrall  v.  Morrall,  L.  E.  0  P.  D. 

i)8  213 

Morris  r.  Burroughs,  1  Atk.  390 

50G,  561 
V.  MacCullock,  2  Eden,  190 ; 

S.  C.  Ambl.  432  78 

V.  Morris,  9  Heisk.  814  511 

V.  Ward,  36  N.  Y.  587  4,  5 

Morrifon  v.  Abbott,  27  Minn.  116  472 

V.  Bailey,  5  Ohio  St.  13  292 

V.  Forbes,  17  C.of  S.  Cas.958  307 

:\rorrow  V.  Williams,  3  Dev.  263     172 

:\Iorse  V.  iMeston,  152  Mass.  5  62,  350 

jMorton  v.  Sewart,  2  Y.&  Coll.  N. 

C.  67  417 

Mosely    v.    Williams,    5     Hare 

(Miss.),  520  9,  218 

]Moses  r.  Murgatroyd,  1  Johns. 

Ch.  119  427 

Moultrie  v.  Jennings,  2  McMull. 

508  228 

Mowry  v.  Smith,  5  R.  I.  255  539 

Mullen  V.  Mullen,  2  Am.  L.  Eec. 

611  566 

MuUick  r.  Radakissen,  9  Moore, 

P.  C.  46  291 

]\Iulliken  v.  Greer,  5  Mo.  489  218 

Mulock  r.  Mulock,  31  N.  J.  Eq. 
594 ;  S.  C.  32  N.  J.  Eq.  348 

370,  447 
Mumma  v.  Mumma,  2  Vern.  19 

549,  553 
Murless    v.  Franklin,  1  Swanst. 

13  520,  554,  574,  591 

Murphy  v.  Stcll,  43  Tex.  123 

376,  387,  400,  402,  470 
:Murrav's  Estate,  2  Chest.  (Pa.) 

300  578,  580,  582 

2  Pears.  (Pa.)  473  601 

:Murrav  v.  Cannon,  41  Md.  466 

106,  327 
V.  Sell,  23  W.  Va.  475  546 

Murrell  v.  Murrell,2  Strobh.  Eq. 

148  .521,  552,  590 

^Mutual  Fire  Ins.  Co.  v.  Deale,  18 

Md.  26  552,  590 

Myers  r.  Peek,  2  Ala.  648  201 

V.  AVarner,  18  Ohio,  519  539,  614 

Naldred  r.   Gilham,  1  P.  Wms. 

577  87,  425 

Xash  V.  Nash,  2  Mad.  133  344 

Nasse  v.  Thonian,  39  Mo.  App. 

178  111 

Xearpass  v.  Newman,  106  N.  Y.  47  436 
Neale  v.  Neale,  9  Wall.  1 

375,  379,  380,  403 
Needles  v.  Needles,  7  Ohio  St.  432 

517,  528,  535,  539,  542 


PAGE 

Neely  v.  Wood,  10  Yerg.  485  533 

Neilson  v.  Blight,  1  Johns.  Cas. 

205  427 

Nelson  v.  Bush,  9  Dana,  104 

580,  603,  605 
V.  Cartmel,  6  Dana,  8  127,  262 
V.  Iver.son,  19  Ala.  95 ;  S.  C. 

17  Ala.  216  201 

V.  Nelson,  7  B.  Mon.  672  608,  609 
V.  Nelson,  90  ]Mo.  4(50 

576,  577,  578,  581,  582 

V.  Sudick,  40  Mo.  App.  341        31 

r.  Wvan,  21  Mo.  347  552 

Nesbit  ?)."Lockman,  34  N.  Y.  167    448 

Nesmith  v.  Dinsmore,  17  N.  H. 

515  518, 541 

Nettleton  v.  Nettleton,  17  Conn. 

542  001 

Neufville  v.  Thompson,  3  Edw. 

92  49,  106,  247 

Nevin  r.  Drysdale,  L.  E.  4  Eq. 

517  531 

New  V.  New,  127  Ind.  576  614 

Newall  r.  Newall,  13  Vt.  33  521 

Newell's  Will,   1    Brown    (Pa.), 

311  534 

Newell  V.  Newell,  13  Vt.  24  590 

Newhouse  v.  Godwin,  17  Barb. 

236  449 

Newman    v.  Wilbourne,  1  Hill 

(S.  C),  Eq.  10  106,  534 

Newton  v.  Acken,  11  Beav.  145      436 
V.  Snyder,  44  Ark.  42 

24,  140,  142,  145 
New  York,  etc.,  Co.  v.  Ketchum, 

27  Conn. 170  57 

Nickerson  v.  English,  142  Mass. 

267  365 

r.  Nickerson,  28  Md.  327  68 

Nicholas    v.   Adams,    2  Whart. 

(Pa.)  17     27,31,30,45,98,170 
Nichols  V.  Coffin,  4  Allen,  27 

538,  610 
V.  Edwards,  16  Pick.  62 

187,  217,  219 
Nicholson  v.  Mulligan,  L.  E.  3  Ir. 

Eq.  308  550 

r.  Mulligan,  17  W.  R.  659; 

S.  C.  3  Ir.  Eq.  308  592 

r.  Tliomas,  8  AV.  N.  Cas.  195    107 
Nightingale    v.  Nightingale,    13 

E.  I.  113  437 

Niver  v.  Crane,  98  N.  Y.  40  547 

Nixon's  Appeal,  63  Pa.  St.  279       546 

Noble  V.  Bines,  72  Ind.  12  468 

V.  Smith,  2  Johns.  32 

5, 105,  107,  167 
Noe  V.  Card,  14  Cal.  576  383 

Nolan  V.  Bolan,  25  Ga.  352  510 


Table  of  Cases  Cited. 


Gol 


Nolan  V.  Bolton,  25  Ga.  352 

512,  574,  575,  593 

Nolen  V.  Harden,  43  Ark.  307    64,  90 

Norris  v.  Norrip,  3  Ind.  App.  500   614 
V.  Bradford,  4  Ala.  203  217 

Northeastern  Ry.  Co.  v.  Jackson, 

19  W.  R.  198  57 

Northern  Central  Mich.  R.  R.  Co. 

V.  Eslow,  40  Mich.  222  279 

Northrop  v.  Hale,  73  Me.  66     63,  342 

Northwestern  Conference  v.  My- 
ers, 36  Ind.  375  275 

Norton  v.  McNutt,  55  Ark.  59        190 
r.  Relly,  2  Eden,  286  456 

Norwood  V.  Branch,  2  No.  Cas. 

598  535 

Nugent  V.  Foster,  49  Mich.  434      192 

Nye  V.  Chace,  139  Mass.  379  64 


Oakev's  Estate,  1  Bradf.  281 
Oherthier  v.  Stroud,  33  Tex.  522 
O'Brien,  In  re,  11  R.  I.  419 
V.  Hilburn,  22  Tex.  616 
V.  O'Brien,  4  Oiitario,  450 
V.  Shell,  7  Ir.  Eq.  255       213, 
518,555,577,582,591, 
O'Dohertv  r.  Ontario  Bank,  32 
C.  P.  (Can.)  285  1S9, 

O'Gara,  In  re,  15  N.  Y.  St.  Repr. 

737 
Ogden  V.  Murray.  39  N.  Y.  202 
Ogsbury  v.  Ogsburv,  115  N.  Y. 
290  ■385,386,-395, 

Oldenberg  v.  Miller,  82  Mich.  650 

187, 
( )ldham  r.  Litchfield,  2  Vern.  506 
Oliver  V.  Moore,  23  Ohio  St.  473 

368,  369,  370, 
Oiler  V.  Boncbrake,  65  Pa.  St.  338 
574,  575,  581, 
Olds  V.  Powell,  7  Ala.  ()52 

65,  197,  204, 

O'Neal  V.  Breecheen,  5  Baxt.  604 

534,  576,  60<), 

O'Neale  v.  Dunlap,  11  Rich.  Eq. 

-105 
O'Neall  r.  Farr,  1  Rich.  80 
r.  Oates,  8  La.  Ann.  78 
O'Neil  V.  Teague,  8  Ala.  :U5 
On:^low  r.  Michell,  8  Yes.  490_ 
Oremerod's  Case,  25  W.  R.  765 
Orme,  In  re,  50  L.  T.  N.  S.  51 
Orinsbv  v.  State,  6  Nev.  283 
Orr  r.  Orr,  8  Bush.  156 

V.  Orr,  21  Gr.  Ch.  (U.  C)  397 
V.  Orr.  31  Q.  B.  U.  C.  13   381, 
Osgood  V.  Breed,  17  Mass.  356 

510, 606, 
V.  King,  42  la.  478 


528 
546 
424 
12 
106 
515, 
592 

210 

259 
56 

403 

243 
438 

408 

583 

217 

608 

563 
449 
()04 
219 
512 
57 
532 
512 
213 
381 
391 

609 
366 


PAGE 

Otis  r.  Beckwith,  49  111.  121  425 

Ouseley  v.  An.«truther,  10  Bcav. 

453  ^  550 

Overholser  v.  Wright,    17  Ohio 

St.  157  566 

Overby  v.   Harris,  3   Ired.   Eq. 

253  217 

Overton  v.  Sawyer,  7  Jones  (N. 

C.)  L.  6   ■  27,  241 

Owen  V.  Kennedy,  20  Gr.  Ch.  1(»3  570 
V.  Tankersley,  12  Tex.  -^05 

189,217 
0 wine's  Case,  1  Bland.  Ch.  370  445 
Ownes  r.  Ownes,  23  N.  J.  Eq.  60  418 
Oxlev  r.  Lee,  1  Atk.  625  87 

Oyster  v.  Oyster,  1  S.  &  R.  422      mj 

Packwood  v.  Dorsev,  6  Rob.  (I^.) 

329 
Padfield  v.  Padfield,  68  HI.  210 
Padmore  r.  Gunning,  7  Sim.  644 
Page  r.  Hcmie,  11  Beav.  227 
V.  Kendrick,  10  Mich.  300 
r.  Page,  8  N.  H.  1S7  549,  591, 
Paine  v.  Parsons,  14  Pick.  318 

531, 
Painter  r.  Painter,  IS  Ohio,  247 
Pahner  r.  Allcock,  3  Mod.  59 
V.  Culbertson,  20  N.  Y.  Supp. 
391  5.52, 

V.  Sterling,  41  Mich.  218 
Parcher  r.  Saco,  etc..  Institution. 
78  Me.  470  1<'>.32, 

Parfitt  V.  Lawless,  L.  R.  2  P.  I'c 
D.  4(>4;  S.  C.  41  L.  J.  P. 
68 ;  27  L.  T.  215  ;  21  W. 
R.  200  ;  4  Moak.  687 

441,442.440, 

Parish  r.  Stone,  14  Pick.  198;  S. 

C.  25  Am.  lUc  378  43, 

63,  9S.  250,  2<1S, 

Parker  v.  Emerson,  i>  Law  I.'c- 

porter,  76 ;  S.  C.  4  N.  Y.  Leg 

Ob.  219 

V.  Hinsnn,  1  Ired.  Eq.  381 

19.3, 
r.  l-ochmere,  12  Cli.  Div.  256 ; 

S  C.  28  W.  R.  48 
r.  Mc(Muer,  36lIow.Pr.  .301; 

S.  C.  5  Abb.  N.  S.  97 ;  3 

Keves,  318 
r.  Marston,  27  Me.  196       98, 
f.  Newitt,  18  Ore.  274 

522,  540, 
r.  Parker,  45  N.  J.  Eq.  224 
V.  Pliillips,  1  May,  451 
r.  Proctor,  9  Ma.«9.  390 
r.  Ricks,  8  Jones  L.  (N.  C.) 

447 


376 
421 
262 
458 
460 
5'.  "5 

584 
.594 
502 

.510 
373 

127 


457 

45. 
271 


271 

152 

542 
241 

570 
4.M 
217 
4<i8 

L42 


652 


Table  of  Cases  Cited. 


428 
453 
541 


474 


Parker  v.  Stones,  38  L.  J.  Ch.  46; 

S.  C.  19  L.  T.  N.  S.  259  433 
Parkin  v.  Day,  6  Wk.  Dig.  113  224 
Parkman  v.  Welch,  19  Pick.  231  468 
Parks  V.  Francis,  50  Vt.  626 ;  28 

Amer.  Rep.  517  254 

V.  Parks,  19  Md.  323 

574,  577,  590,  595 

V.  Rtonum,  8  Ala.  752  603 

V.  Willard,  1  Tex.  350  12 

Parne  r,.  Llovd,  82  Va.  859  511 

Parnell  v.  Kingston,  3  Sm.  &  G. 

337 
Parris  v.  Cobb,  5  Rich.  Eq.  450 
Parsons  v.  Ely,  45  111.  232 
Parthimer's  Estate,  1  Pears.  433 ; 
S.  C.  16  Pitts.  L.  J.  235;  1 
Leg.  Gaz.  Rep.  478 
Parthrick  c.  Friend,  2  Collv,  362 

25,  31,  234 

Partridge  v.  Havens,  10  Paige,  618  549 

Patchin  r.  Swift,  21  Vt.  292  275 

Pate  V.  Barrett,  2  Dow.  426  226 

V.  Johnson,  15  Ark.  275  5 

Patersen  v.  Murphy,  11  Hare,  88 

S.  C.  17  Jur.'  298 ;  22  L.  J 

Ch.  882 ;  1  Eq.  Rep.  173 

1  W.  R.  274 ;  17  E.  L.  &  Eq 

287  92,  426,  433,  436 

Patridge  v.  Gopp,  Amb.  59()  472 

Patterson's  Appeal,  128   Pa.  St. 

269  509,  595,  609 

Patterson's  Estate,  6  Pa.  C.  C.  R. 

443  ;  S.  C.  45  Leg.  Int.  474  609 
Patterson  v.  Copeland,  52  How. 

Pr.  460  376 

V.  Lainson,  45  Ohio  &*l.  77        372 

V.  Mills,  69  la.  755  515 

V.  WiUiains,  Llovd  &  Goold, 

Ir.  Ch.  Cas.  9o  106,  249 

Paul  V.  Jennings,  23  Atl.  Rep.  483    53 

Pauline  v.  Hubert,  14  La.  Ann.  161  54 

Payne  v.  Lassiter,  10  Yerg.  507       182 

V.  Little,  26  Beav,  1  211 

V.  Powell,  5  Bush.  248 

2,  66,  107,  172 
Peacock's  Est.,  L.  R.  14  Eq.  Cas. 

236  538 

Pearce  v.  Gibbon,  6  Rev.  Leg.  649    97 
V.  Cleaves,  10  Yerg.  360  536,  603 
Pearson's  Case,  L.  R.  5  Ch.  Div. 
336;  25  W.  R.  618,  affirm- 
ing S.  C.  4  Ch.  Div.  222  57 
Pearson  v.   Amicable   Office,  27 

Beav.  229  428 

V.  Pearson,  7  Johns.  26         5,  268 
Peavev  v.  Tilton,  18  N.  H.  151 ; 

"S.  C.  45  Am.  Dec.  365  71 

Peck  V.  Lincoln,  76  la.  424     468,  469 


Peck  V.  Rees,  27  Pac.  Rep.  581       142 

V.  Vandenberg,  30  Cal.  11  4 

Peckham  v.  Taylor,  31  Beav.  250    359 

r.  Taylor,  6  L.T.N.S.  387  419,432 

Pecquet  v.  Pecquet,  17  La.  Ann. 

204,  229  528 

Peeler  v.  Guilkey,  27  Tex.  355        106 
Peer  v.  Peer,  3  Stock.  432       214,  566 
Peirce  v.  Burroughs,  58  N.  H.  302   68 
V.  Ruley,  5  Ind.  69  274 

Pellv,  Ex  parte,  L.  R.  21  Ch.  Div. 

492  57 

Pemberton  v.  Pemberton,  22  ]\Io. 

338  182 

Pendleton  v.  Mills,  Geo.  Dec.  pt. 

166  218 

Peniield  v.  Thayer,  2  E.  D.  Smith, 

305  125,  166,  318 

Penfold  V.  Mould,  4  L.  R.  Eq.  562  423 
Penniman  v.  Perce,  9  Mich.  509  52 
Pennington  v.  Gittings,  2  G.  &  J. 

208  105,  110,  117,  350 

People  V.  Johnson,  14  111.  342  87 

V.  State  Bank,  36  Hun,  607      310 

Perin  v.  Carey,  24  How.  465  59 

Perley  v.  Perley,  144  Mass.  104 

189,  190 

Perry  v.  Carmichael,  95  111.  519       49 

V.  Graham,  18  Ala.  822     172,  217 

V.  High,  3  Head,  349        536,  603 

V.  Whitehead,  6  Ves.  544         523 

Perryclear  v.  Jacobs,  2  Hill.  Ch. 

(S.  C.)  504  493 

Persinger  v.  Simmons,  25  Graft. 

ooQ  005 

Person  'v.  Scott,  64  Ga.  767  517 

Person's  Appeal,  74  Pa.  St.  121^  526 
Persons  v.  Persons,  25  N.  J.  Eq. 

250  214 

Peters  v.  Fort  Madison,  etc.,  Co., 

72  la.  405  161 

Peterson  /-.  Mulford,  36  N.  J.  L. 

481  50 

Pethybridge  ?).  Burrow,  53  L.  T. 

Rep.  (N.  S.)  5         351,  423,  424 
Petty  V.  Montague,  7  B.  Mon.  55   494 
V.  Petty,  4  B.  Mon.  215  ;  S. 
C.  39  Am.  Dec.  501 

494,  495,  496 
V.  Trustees    of   Church    of 

Christ,  etc.,  95  Ind.  278        274 
V.  Webb,  6  B.  Mon.  468  494 

Phelps  t'.  Phelps,  20  Pick.  556 

49,  51,  344 
V.  Phelps,  28  Barb.  121     268,  269 
Phillips  V.  Barnet,  L.  R.  1  Q.  B. 

Div.  436  50 

V.  Chappell,  16  Ga.  16 

577,  578,  593 


Table  of  Cases  Cited. 


653 


99 
49 

448 

521 


PAGE 

Phillips    V.   Franciscus,  52    Mo. 

370  330 

V.  Gregg,  10  Watts,  158    549,  606 
V.  McLaughlin,  26  Miss.  592 

533,  602 
V.  Mailings,  L.  R.  7  Ch.  Ap. 

244 
V.  Wooster,  36  N.  Y.  412 
Phillipson  v.  Kerry,  32  Beav.  628 
99  371  447 
Phillups  V.  Phillups,  20  S.'w. ' 

Rep.  541 
Phipps  V.  Hope,  16  Ohio  St.  586 

115, 119 
V.  Jones,  20  Pa.  St.  260       68,  280 
Picoct  V.  Sanderson,  1  Dev.  L.  309 

133,  144,  174 
Pierce  v.  Boston  Five  Cents  Sav- 
ings Bank,  129  Mass.  425 ; 
S.  C.  37  Am.  Rep.  371 

46,  318,  319 

•v.  Gravs,  5  Mart.  (La.)  370         72 

V.  Pierce,  71  N.  Y.  154 ;  S.  C. 

27  Amer.  Rep.  22  458 

Pierse  r.  Waring,  1  P.  Wms.  121    462 

Pierson  v.  Armstrong,  1  Iowa,  282    5 

V.  Heisey,  19  la.  114         114, 158 

Pigg  V.  Carroll,  89  III.  205 

606,  608,  615 
Pile  V.  Pile,  6  Lea.  508 ;   S.  C.  40 

Am.  Rep.  50 
Pillans  V.  Mierop,  3  Burr,  1673 
Pillot  V.  Lardon,  46  N.  J.  Eq.  310 
Pinckard  v.    Pinckard,  23    Ala. 

649 
Piper  V.  Parse,  2  Redf.  19 
Pitts  V.  Mangum,  2  Bailey  L.  588 
Planters'  Bank  >\  Hornberger,  4 

Coldw.  531 
Platamore  v.  Staple,  Coop.  250 
Piatt  V.  Blatt,  2  Y.  &  C.  29 
Podmore  v.  Gunning,  7  Sim.  644  438 
Poirier  v.   Lacroix,  6  Low.  Can. 

Jur.  302  74,  90 

Polar  Star   Lodge  v.  Polar  Star 

Lodge,  16  La.  Ann.  53  56 

Pole  V.  Pole,  1  Ves.  Sr.  76        553,  555 
V.    Simmons,    45    Md.    246 

536,  581,  585 
Pollock  V.  Worrall,  L.  R.  28  Ch. 

Div.  552  514 

Pomeroy   v.   Pomerov,   54  IIow. 

Pr.  228  "  495 

Pope   V.   Burlington   Savings 

Bank,  56  Vt.  284  ;  S.  C.  48 

Amer.  R.  781  63,  320,  337 

V.  Dodson,  58  111.  360  382 

V.  Randolph,  13  Ala.  214  86,  182 

Popham  V.  Brooke,  5  Russ.  8         458 


266 
275 
162 

.377 
596 


456 
425 
453 


Porter  v.  Allen,  54  Geo.  623 ;  S. 

C.  3  Pa.  St.  390     198,  204,  37<1, 
386,   387,  400,   405,  577,  596 
V.  Collins,  7  Conn.  1  601 

V.    Gardner,    60   Hun,    571 

117,  125,  133,  159,  187 
V.  Porter,  27  Gratt.  599  213 

Poston  V.  Gillespie,  5  Jtjnes,  258 

480,  483,  485,  486,  492,  494 
Potter  V.  Gracie,  58  Ala.  303  4.39 

7-.  Smith,  68  Mich.  212  398 

Poullain  v.  Poullain,  79  Ga.  11 ; 
S.  C.  76  Ga.  420;  72  Ga. 
412  107,  115,  167,  19S,  206. 

404,  405 
Poulson  V.  Wellington,  2  P.  AVni.a. 

533  479,  488 

Powel  V.  aeaver,  2  Bro.  C.  C. 

500  238 

Pow^ell  V.  Brown,  1  Bail.  L.  100     1S2 
V.  Hankey,  2  P.  Wins.  82         21 1 
V.   Hellicar,   26   Bt-av.    261  ; 
S.  C.  5  Jur.  N.  S.  2.32;  28 
L.  J.  Ch.  :3.55  13.5,  139,  141 

V.  Leonard,  9  Fla.  359 

115, 117,  170 
r.  Manson,  22  Gratt.  177  49S 
V.  Olds,  9  Ala.  861  (>5,  197 

f.  Powell,  9  Dana,  12  612 

V.  Powell,  5  Dana.  1(>8 

574,  5!X),  ()02,  603,  604 
Power  V.  Power,  52  N.W.  Rop.  61)  51K) 
Pownall  V.  Anderson,    4  W.  R. 

407  422 

Powvs  V.  Mansfield,  3  Mvlne  it 
Cr.  359 ;  S.  C.  6  Sim.  52S 

514,  596 
Prather  v.   Burgess,   5    Crancli. 

C.  C.  376  4.^\  491 

Pratt  V.  Barker,  1  Sim.  1  ;  S.  C. 

4  Rus.«.  507  4.'>7 

V.  Pratt,  Fitzg.  284 ;  S.  C.  2 

Stra.  9.35      '  562,  C(\'l 

r.  Trustees,  etc.,  93  111.  475      280 
Presbvterian  Church  of  Albany 
'v.  Cooper  112  N.  Y.  517 

279,  285 
r.  Cooper,  45   Hun,  433 ;  S. 
C.  10  N.  Y.  St.  Rop.  142 

27S,  282 
Presslev  v.  Konip,  16  S.  C.  .'i^«4  ; 

S.  C.  42  Am.  Rop.  6:i5   442,  4.VI 
Price  V.  Price,  5  Ala.  578  182 

V.  Price.  14  Boa  v.  W8.  af- 
firmed 1  DoG.,  M.  &.  <J. 
308;  S.  C.  21  L.  J.  Ch. 
{N.  S.)  53  370.  427.  440 

Prideaux  r.  Iy)nsdalo,  1  Do  G.,  J. 

&  S.  433  '*37 


654 


Table  of  Cases   Cited. 


Priest  V.  Conklin,  38  111.  App. 

180  474 

Prince  v.   Hazleton,  20    Johns. 

502, 514  21 

V.  Slemp,  82  Va.  352  578 

Prindle   v.   Caruthers,  15  N.  Y. 

425  266 

Pringle  v.  Pringle,  59  Pa.  St.  281  474 
Printup  V.  Mitchell,  17  Geo.  558 

403,  404 
Prior  V.  Reynolds,  8  W.  L.  Jr. 

325  '  208 
Pritchard  v.  Pritchard,  69  Wis. 

373  196,  199,  203,  204 

Proseus  v.  Mclntyre,  5  Barb.  424 

536,  549 
Providence  Institute,  etc.,  v.  Taft, 

14  R. I. 502  125 

Prudence  v.  Bermodi,  1  La.  240  54 
Pruitt  ('.  Pruitt,  91  Ind.  595  72,  73 
Prvor  V.  Cain,  25  111.  App.  233  278 
Pulvertoft  V.  Pulvertolt,  18  Ves. 

84  415, 437 

Purdham  v.  Murray,  9  Ont.  App. 

369,    reversing    29    Grant 

Ch.  443  212,  241 

Pursel  V.   Armstrong,  37  Mich. 

326  469 
Puryear  v.  Cabell,  24  Gratt.  260 

608,  611,  612 
Pusey  V.  Desbouvrie,  3  P.  Wms. 

320  506,  561 

Putnam  v.  Putnam,  18  Ohio,  347   539 

Pve,  Ex  parte,  18  Ves.  140      415,  419, 

420,  436,  509,  514 

Pyle  V.  Maulding,  7  J.  J.  Mar. 

202  175 

Pvm  V.  Lockyer,  5  Mvlne  &  C. 

29,  46  '  509 

Pyron  v.  Parker,  25  Geo.  17  469 

Quarles  v.  Quarles,  4  Mass.  680 

521,  541 
Queen  v.  Carter,  13  C.  P.  Oil  107 

V.  The  General  Cemeterv,  6 
El.  &  Bl.  415  '        351 

R.  V.  Raines,  1  Ld.  Raym.  p.  574  506 
Ragsdale  v.  Norwood,  38  Ala.  21  176 
Rainsford  v.  Rainsford,  Speer  Eq. 

385  534 

Raiford  r.   French,  11    Rich.  L. 

367  217 

V.    Raiford,  6  Ired.  Eq.  490 

539,  606 
Rains  v.  Havs,  6  Lea,  .303  529 

V.   Haves,   2  Tenn.  Ch.  669 

"  511,  519,  529, 532,  563,  577 
Ralph  ,r.  Link,  5  Q.  B.  (Can.)  145      7 


Ralston  ?'.  T^irpin,  25  Fed.  Rep. 

7  453,  460 

Ramsay  v.  Joyce,  1  McMull,  Eq. 

236  219,  480,  489 

Ramsej'  v.  Abrams,  58  la.  512        614 
Randall  v.  Peckham,  11  R.  I.  600      6 
Rankin   v.  Weguelin,    27   Beav. 
309 ;   S.   C.   29 ;  L.  J.   Ch. 
323 ;  Reg.  lib.  B.  1831,  folio  244 
Ravenscroft  v.  Jones,  32  Beav. 
669 ;    S.  C.  4  De  Gex.,  J. 
&  S.  224  530 

Ray  f.  Loper,  65  Mo.  470        551, 57(>, 
577,  603,  604,  COO 
V.  Simmons,  11  R.  I.  266 ;  S. 
C.  23  Am.   Rep.  447;   15 
Amer.  L.  Reg.  701         326,  333 
Raymond  v.  Pritchard,   24  Ind. 

318  86,  368 

V.  Cook,  31  Tex.  373  470 

V.    SeUick,    10    Conn.    480 
14,  16,  27,  45,  193,  268,  271,  272 
Raynes  v.  Lowell,  etc.,  Society,  4 

Cush.  343  343 

Read   v.   Robinson,   6  W.   &  S. 

329  423 

Reade  v.  Adams,  5  Ir.  C.  L.  Rep. 

426  373 

Reech  v.   Kennegal,   1  Yes.  Sr. 

123  438 

Rector  v.  Danley,  14  Ark.  304 ;  S. 

C.5Eng.  211  158,160,197 

Reddel  v.    Dobree,   10  Sim.  244 

98,  117,  137,  297 
Redington   v.    Redington,  3 

Ridgw.  100    546,  549,  550,  553, 

554 

Reed  v.  Barnum,  136  111.  388  177,  ISO 

Read  v.  II  utf,  40  N.  J.  Eq.  229        214 

r.  Rahm,65  Cal.  343  212 

Reed  v.  Copeland,  50  Conn.  472 ; 

S.  C.  47  Am.  Rep.  663  350 

V.  Reed,  52  N.  Y.  651  62 

V.  Spaulding,  42  X.  H.  119 

(i6, 106,  114 
V.  Yannarsdale,  2  Leigh,  569 

422,  4.32 
Reeder  ?-.  Flinn,  6  S.  C.  216  211 

Rees  V.  Rees,  11  Rich.  Eq.  86 

521,522,532,565 
Reeves  v.  Brynier,  6  Yes.  516         262 
■V.  Capper,  5  Bing.  N.  C.  56 ; 
S.  C.  6  Scott,  877 ;   2  Jur. 
1067  107 

Regina  v.  INIiddleton,  2  L.  R.  C.  C. 
38,56;  S.  C.  42  L.  J.  M.  C. 
73:  28  L.  T.  777;  12  Cox, 
C.  C.  260,  417  11 

Reid  V.  Butt,  25  Ga.  28  175,  224 


Table  of  Cases   Cited. 


>tj'j 


Reid  V.  Colcock,  1  N.  &  McC.  592 

104,  106,  115,  157,  187 
Reimensnyder  v.  Gans,  110  Pa. 

St.  17  278,  280 

Renfer  v.  Harrison,  10  Mo.  411        71 
Reynolds  v.  Caldwell,  80  Ala.  232  546 
V.  Reynolds,  13  Kj'.  L.  Rept. 

793  561 

V.  Reynolds  (Kv.),  18  S.  W. 

Rep.  517         '  152, 563 

V.  Vance,  1  Heisk.  344      480,  495 
Rhodes   r.    Bate,   35    L.  J.  Ch. 

267  450, 458 

V.  Child,  64  Pa.  St.  18 

27,  28,  38,  41 ,  209,  215,  296 
V.  Rhodes,  10  La.  85        6,  66,  394 
Rich  ?'.  Briery,  110  Ind.  444  554 

V.  Cockell,  9  Ves.  369  52 

V.  Mobley,  33  Geo.  85       218,  220 
Richard  v.  Svmes,  2  Atk.  319;  S. 
C.  3  Barn.  90 ;  2  Eq.  Cas. 
Abr.  617  231,  237,  260,  261 

Richards  v.  Delbridsje,  43   L.  J. 
Ch.459;  S.  C.  22  W.  R.  584 

370,  412,  417,  419 
V.  Humphreys  ,1 5  Pick.  133  518 
V.  Munro,  30  S.  C.  284  1 97,  202 
V.  Richards,  11  Humph.  428 

496,  601 
Richardson,  In  re,  47  L.  T.  N.  S. 

514  540 

V.  Adams,  10  Yerp.  273 

132,  241,  271,  438 
V.  McNulty,  24  Cal.  339  404 

V.  Rhodus,  14  Rich.  L.  95        471 
V.  Richardson,  3  L.  R.  Eq. 
686 ;    S.  C.  15  W.  R.  690 ; 
36  L.  J.  Ch.  653 

238,  257,  417,  428 
t'.  Seeyers,  84  Ya.  259  119 

Richer  v.  Yoge,  5  Rey.  Leg.  591     194 
Richmond  v.  Yanhook,  3  Ired. 

Eq.  581  •''35 

V.  Yongue,  5  Strobh.  L.  46       217 
Richmondyille  Union  Seminary, 
etc.,  V.  Brownell,  37  Barb. 
535  278 

Rickards  v.  Attorney-General,  12 

CI.  &  F.  44  -167 

Kickenbacker  v.  Zimmerman,  10 

S.  C.  110  533,  540,  607 

Riddle's  Est.,  19  Pa.  St.  431     5(50, 561 
Ridden  r.  Thrall,  125  N.  Y.  572  ; 
S.  C.  21  Am.  St.  758;  26  N. 
E.  Rep.  627;  55  Hun,  185 

22,  28,  31,  32,  36,  317,  320 
Rider  v.  Kidder,  10  Yes.  360  356 

Ridley  v.  McNairy,  2  Humpl^- 

■174  377,410 


Riegel  v.  Wooley,  81*  Pa.  St.  227     77 
Rieper  v.  Rieper,  79  Mo.  352  52 

Riggs  V.  American  Tract  Society, 

84  N.  Y.  330  443 

Rinker  v.  Rinker,   20   Ind.   185 

72,  140,  183,  207,  227,  2(^4,  2()0 
Ritch  r.  Hawxhurst,   114  N.  Y. 

512  5:;7 

V.  Hvatt,  3  ISI'Arthnr,  536        21 1 
Putter's  Appeal,  59  Pa.  St.  9  436 

Rivanna  Navijiation  Co.  >:  Daw- 
sons,  3  Gratt.  19 ;  S.  C.  4(5 
Am.  Dec.  183  366 

Rober-son  v. Nail,  85  Tenn.  124       Hid 
Roberts'  Appeal,  85 Pa.  Si.  84        3()1 
r.  Cobb,  103  N.  Y.  (iOO;  S.  C. 
21  N.  Y.  St.  Rep.  503, 

275,  278,  279 
V.  Coleman,  16  S.  E.  Rep.  482  519 
V.  Draper,  18  Bradw.  liiS 

2  22,  32,  (W! 
V.  Llovd,  2  Beav.376  2ol' 42iC'42H 
V.  Ruker,  2  Pa.  Le- Gaz.  131  212 
V.  Roberts,  15  W.  R.  117  125 

V.  Roberts,  llJur.  N.  S.  992  ; 
14  W.  K.  123:  13L.T.N.S. 
492:12  Jur.N.S.  971      48,430 
V.  Wills,  Spencer  (N.  J.)  591    132 
Robertson  v.  Corbett,  33  Mich. 458  278 
r.  March,  3  Scam.  (111.)  198     278 
Robinson  v.  Buck.  71  Pa.  St.  386    481 
t;.  Cummings,  2  Atk.  40.1 ;  14 
Yin.  Alir.  title  (iift,  pi.  7: 
Foiib.  Eci.  sect.  15;  1  Cum. 
Dig.  313  SO,  04 

V.  Denson,  3  Head.  .395  438 

V.  Dunn,  77  Cal.  47.!  54 

V.  Pittsbun.'h,  etc.,  K.  P.  Co., 
32  Pa.  St.  334  ;  S.  C.  72  Am. 
Dec.  792  365 

r.  Ring,  72  :Me.  140;  S.  C.  39  ^ 

Amer.  Pep.  30S  312 

V.  Robinson,  4  Humph.  392 

531.  5.',9 

V.  Robinson.  Bravt.  59      542,  5«il 

7'.  Swift,  3  Vt.  283  542 

V.  AVhitley.  9  Yes.  577  5<>6 

Robson  V.  Jones,  3  Del.  Ch.  51 

27,  28,  105,  109,  145.  22t;,  415. 
418.421,42.; 
RockafcUow  v.  Xewcomb.  57  111. 

186  ,     ^    •l'*''^ 

Rock  Island  Stove  Co.  r.  A\  alrod, 

75  la.  479  '*«'»-'* 

Rockwood  V.  Wiggin,  16  Gray, 


402 


196 


Rodo-ersr.  Marshall.  17  Yes.  294    440 
Roe"r.  Wilkins.  4  A.  &  E.  Sd  :x) 

Regan  r.  "Walker,  1  A\  is.  o2< 


546 


6o6 


Table  of  Cases   Cited. 


Rogers  v.  Daniell,  8  Allen,  343       530 
V.  Rogers?,  55  Vt.  73  269 

Roland  r.  Schrack,  29  Pa.  St.  125 

564, 596 
Rolls  V.  Pcarce,  5  Ch.  Div.  730 ;  S. 

C.  46  L.  J.  Ch.  791 ;  36  L. 

T.  438  ;  25  W.  R.  8f)9  ;  22 

Moak.  432  300 

Roman  Catholic  Orphan  Asj'lum 

('.  Strain,  2  Bradf.  34    266,  328 
Root  V.  Blake,  14  Pick.  271  546 

Rose  V.  Wynatt,  7  Yerg.  33  456 

Rosenburg  v.  Rosenburg,  40  Hun, 

91  92,  93 

Ross's  Appeal,  127  Pa.  St.  4    208,  242 
V.  Draper,  55  Vt.  404  117 

Rothwell  r.  Dewees,  2  Back.  613  546 
Rowe  /'.  Merchant,  86  Va.  177  129 
Rowland  v.  Sullivan,  4  Des.  Eq. 

516  443 

Ruch  V.  Bierv,  110  Ind.  444 

511,  552,  593,  595,  601 
Rucker  v.  Abell,  8  B.  Mon.  566 

377,  382,  397,  410 
Ruckman  v.  Ruckmar,  4  N.  J.  L. 

Jr.  134  170,  174 

Rumbly  v.  Stainton,  24  Ala.  712 

217,  219 
Rumholds  v.  Parr,  51  Mo.  592  376 
RuniboU  r.  Runiboll,  2  Eden,  16  554 
Rummers  v.   Hare,  1   Ex.  Div. 

169;  S.  C.  46  L.  J.  Ex.30; 

34  L.  T.  407  ;  24  W.  R.  385  248 
Rupert  V.  Johnson,  40  Q.B.  (Can.) 

11  122 

Ruse  V.  Bromberg,  88  Ala.  619 

49,  471,  472 
Russ  r.  George,  45  N.  H.  467  51 

V.  Brown,  45  N.  H.  467  51 

Russell's  Appeal,  25  P.  F.  Smith, 

289  99,  437,  448 

Russell  V.  Svvitzer,  63  Geo.  711  404 
Rutledge,  Ex  parte,  Harper  Eq. 

(S.  C.)  65  365 

Rval  V.  Rval,  1  Atk.  59  467,  591 

Rvburn  ?■.  Pryor,  14  Ark.  505  86,  200 
Rycroft  v.  Christy,  3_Beav.  238      429 
Ryerss  r.   Presbyterian  Congre- 
gation, 33  "Pa.  St.  114  278 

Sackett  r.  Sackett,  8  Pick.  309  508 
Salem  Bank  v.  Gloucester  Bank, 

17  Mass.  1  56 

Salmon  v.  Wilson,  41  Cal.  595  4 

Sampson  v.  Sampson,  67  la.  253  189 
Sanborn  v.  Goodhue,  28  N.  H.  48  87 
r.  Sanborn,  65  N.  H.  172  268 

Sanderlin  v.  Sanderlin,  24  Geo. 

583  184.  213 


Sanford  v.  Finkle,  112  111.  146  49 

V.  Noble,  2  Pick.  337  581 

V.  Sanford,  45  N.  Y.  723  ;  S. 
C.  T.  &  C.  641  ;  affirmed, 
58N.  Y.  69;  S.  C.  17  Am. 
Rep.  206  266 

V.  Sanford,  61  Barb.  293 

551,  559,  561,  602 
Sanilac   Co.  v.  Auditor-General, 

68  Mich.  659  64 
Saniland  v.  Willott,  3  MacN.  & 

G.  664  194 

Sargent  v.  Baldwin,  60  Vt.  17  436 
V.  Cornish,  54  N.  H.  18  59,  60 
Sasser  v.  Sasser,  73  Geo.  275  210,  463 
Sanfley  v.  Jackson,  16  Tex.  579  93 
Saunders  v.  Harris,  1  Head.  185 

480,  491 
Savignv  L.  22  de  V.  O.  (25,  1)   1 

Whart.  Cont.  sect.  195  95 

Sawyer  v.  Hoag,  17  Wall.  610         366 
Say  re  v.  Hughes,  5  L.  R.  Eq.  376 ; 

S.  C.  37  L.  J.  Ch.  401  ;   16 

W.  R.  662 ;   18  L.  T.  N.  S. 

347  532,  550,  569 

V.  Sayre,  5  Stew.  (N.  J.)  61 ; 

S.  C.  8  Stew.  563  517 

Scales  V.  Maude,  6  De  G.  &  M. 

43;  S.C.I  Jur.  533,  1147; 

25  L.  J.  Ch.  433  ;  3  W.  R. 

527  120,129,178,261,417, 

419,4.30,434 
Scarborough   v.  Watkins,  9  B. 

Mon.  540  464 

Scawin  v.  Scawin,  1  Y.  &  C.  Ch. 

65  554 

Schaffer  v.  Dumble,   5  Ontario, 

716  150 

SchafTner   v.   State,  8    Ohio   St. 

642  7 

Schick  V.  Grote,  42  N.  J.  Eq.  352 

194,  230,  343 
Schollmier  v.  Scholhnier,  78  la. 

426  320 

Schooler  v.  Schooler,  18  Mo.  App. 

69  49,  150,  152 
Schoonmaker  v.  Plummer,  29  N. 

E.  Rep.  1114  379 

Schroder  v.  Wanzor.  36  Hun,  423  377 
Schultze  ?).  New  York  Citv,  103 

N.  Y.  307  ■  547 

SchAvartz's  Estate,  17  Phila.  435 ; 

S.  C.  42  Leg.  Int.  16  474 

Scot  r.  Haughton,  2  Vern,  560  78 

V.  Tosbrooke,  18  C.  C.  (N.  S.) 

515;S.C.34L.J.  C.P.164; 

11  Jur.  N.  S.  202  186 

Scott  r.  Berkshire,  etc.,  Bank,  140 
Mass.  157    196, 198,  199,  201,  341 


Table  of  Cases  Cited. 


657 


PAGE 

Scott  r.  Harbeck,  49  Hun,  292       333 
V.  Harris,  127  Ind.  520 

522,  552,  614,  615 
V.  Lauman,  164  Pa.  St.  593  307 
V.  McAlpine,  6  C.  P.  (Can.) 

302  166 

V.  Reed,  25  Atl.  Rep.  604  106,  189 
V.  Scott,  1  Mass.  526  552 

V.  Simes,  10  Bosw.  314  266 

V.  Ward,  13  Cal.  458         100,  383 
Scottish    Amer.    Invest.    Co.  v. 

Elora,  6  Ontario  A  pp.  628  2 
Scrope  V.  Serope,  1  Ch.  Cas.  27 

550,  555 
Seagrist's  Appeal,  10  Pa.  St.  424 

564,  615 
Sear  v.  Ashwell,  3  Swanst.  411        425 
Searing  v.  Searing,  9  Paige,  283      267 
Searle  v.  Law,  15  Sim.  95 ;  S.  C. 
15  L.  J.  Ch.  N.  S.  189  ;  10 
Jur.  191  248,  250,  420,  427 

Sears  v.  Shafer,    1   Barb.    468 ; 
affirmed,  6  N.  Y.  268 

444,  446,  447,  448,  450,  451 
Seavey  v.  Drake,  62  N.  H.  393        375 
V.  Seavey,  30  111.  A  pp.  625        180 
Seawall  v.  Glidden,  1  Ala.  52 

157,  158,  161,  170,  171,  183,201 
Sebrell  v.  Couch,  55  Ind.  122  130 
Second  Nat.  Bank  v.  Williams, 

13  Mich.  282  302 

V.  Merrill,  etc..  Works,  50  N. 
AV.  Rep.  503  141 

Selleck  v.  Selleck,  107  111.  389  6,  7,  83 
Seniple  v.  United  States,  24  Ct.  of 

CI.  422  2 

Sessions  r.  Moselv,  4  Cush.  87 

27,  91,  94,  i40, 145, 146,  148, 240 
Seton  V.  Seton,  2  Bro.  Ch.  610  272 
Sewall  V.  Roberts,  115  INIass.  262  436 
Sexton  r.  HoUis,  26  S.  C.  231  546 
V.  Wheaton,  8  Wheat.  229  470 
Shackford  v.  Newington,  46  N. 

H. 415  59 

Shackleford  v.  Brown,  89  Mo.  546 

105, 148 

Shales  v.  Shales,  2  Freem.  252        549 

Sharp  r.  Leach,  31  Beav.  494         451 

V.  Maxwell,  30  Miss.  589         213 

Shaw  V.  Kent,  11  Ind.  80  520 

t;.  Shaws6Humph.418  533 

V.  White,  28  Ala.  637  3 

Shawhanw.  Shawhan,  10  Bush. 

600  521  534,540 

Sheedy  v.  Roach,  124  Mass.  472 ; 
S.  C.  26  Am.  Rep.  680 

3, 11,  48,  319 
Sheegos:  v.  Perkins,  4  Baxt.  273 

27,86,111,134,330 

42 


Sheldon  v.  Button,  5  Hun,  110  34 
Shellhamnier    v.    Ashbaugh,  83 

Pa.  St.  24 ;   S.  C.  34  Leg. 

Int.  67  402,  403 

Shelly's  Case,  1  Coke  Rep.  p.  101 ; 

citing  17  E.3,  ful.  29  ed.,  18 

E.  J.  59  55 

Shenstone  v.  Brock,  36  Ch.  Div. 

541  ;  S.  C.  56  L.  J.  923  ;  57 

L.  T.  249;  35  AV.R.118  426 
Shepard  i;.  Shepard,7  Jolins.  Ch. 

57  ;  S.  C.  11  Am.  Dec.  396  369 
Shepherd  v.   Bevin,  9  Gill,  32; 

affirming  4  Md.  Ch.  133  376 
V.  White,  10  Tex.  72;  S.  C. 

11  Tex.  346  54!),  591 

Sheppard  v.  Earle,  25  Hun,  317  258 
Sherman    v.   Hogland,   54    Ind. 

578  468 

V.  Hogland,  73  Ind.  472  473 

V.  Isew  Bedford,  etc..  Bank, 

138  Mass.  581  338 

V.  Sherman,  75  la.  136  197 

Sheridan  v.  Slu'ridan,  etc.,  Co., 

38  Hun,  396  57 

Sherk  r.  Endress,  3  W.  &  S.  255    242 

Sherwood  v.  Smith,  23  Conn.  516    S4 

V.  Wooster,  11  Paige,  441         603 

Shirley  v.  Shirley,  9  Paige  Ch. 

V.  Whitehead,  1  Ired.  Eq.  130 

27,  173,209,224 
Shiver  v.  Brock,  2  Jones  E(|.  1;'>7 

525,  532,  502,  608 
Shobe  V.  Carr,  3  Munf.  10  37G 

V.  Shobe,  2  Freeui.  252  554 

Short  V.  M.  E.  Church,  11    La. 

Ann.  174  401 

V.  Stotts,  58  Ind.  29  508 

Shower  v.  Pilck,  4  Exch.  478 

223  224 
Shotwell  V.  Struble,  21  N.  J.  Ktj.' 

31  5(;s 

Shuttlf-worth  V.  Winter,  55  N.  Y. 

624  49, 62 

Sidmouth  v.  Sidmouth,  2  Boav. 
447  ;  S.  C.  9  L.  J.  Ch.  N.  S. 
282  553,  555,  574,  575.  577, 

57!»,  592 
Siger  V.  Evans,  5  E.  &.  B.  367        22'.» 
Simar  v.  Canaday,  53  N.  Y.  2!W    4St5 
Simmons  r.   Cincinnati  Savings 
Soc,  31  Ohio  St.  457;  S.C. 
affirming  6  Amer.  L.  R«'c. 
441  293,  294 

Simpson    Centenary    College    r. 

Tuttle,  71  la.  5<'6  276,  286 

Simpson  v.  Simpson,  114  111.  603 

540,541 


658 


Table  of  Cases  Cited. 


Sims  V.  Rickets,  35  Ind.  181 ;  S. 

C.  9  Am.  Rep.  679  49,  369 

V.  Saunders,  Harp.  (S.  C.)  374 

200,  217 
V.  Sims,  39  Ga.  108 

583,  587,  603,  607 
V.  Sims,  2  Ala.  117 ;  S.  C.  8 

Port.  449  158,  161 

V.  Walker,  8  Humph.  503 

119  132  439 
Singleton  v.  Cotton,  23  Geo.  261  '  36 
Sirow  V.  Michaud,    2  Low.  Can. 

Rep. 177  100 

Skeats  v.  Skeats,  2  Y.  &  Coll.  C. 
C.  9;  S.  C.  12  L.  J.  Ch. 
N.  S.  22 ;  6  Jur.  942  550 

Skidmore  v.  Bradford,  8  Eq.  134  550 
Skinner's  Appeal,   1  Mon.  (Pa.) 

439  543 

Skinner  v.   Skinner,  4  Ired.  L. 

175  217, 378 

Slack  V.  Slack,  26  Miss.  287  515,  516 
Slanning  v.  Stvle,  3  P.  Wms.  333  50 
Slaughter  v.  Tutt,  12  Leigh,  147  194 
Sleeper  v.  Iselin,  62  la.  583  430 

Sloan  V.  Cadogan,  Sugd.  V.  &  P. 

App.  428, 429 

Sloper  V.  Cottrell,  6  El.  &  Bl.  497  426 
Small  V.  Marvvood,  B.  &  C.  300  229 
Smith,  Li  rr,  95  N.  Y.  516  456 

Smith's  Estate,  8  Pa.  C.  C.  R. 

539  419 

Smith  V.  Axtell,  Saxt.  (N.  J.)  494  604 
v.  Burnet,  34  N.  J.  Eq.  219  ; 
S.  C.  35  N.  J.  Eq.  314 

190,  193,  204,  205,  230,  360 
V.  Camel  ford,  2  Ves.  Jr.  698  211 
V.  City  of  Rome,  19  Geo.  89  373 
V.  Dubose,  78  Geo.  413  96 
V.  Dorsev,  38  Ind.  451            2,  22, 

26,  33,  36,  6f),  76,  86,  118,  226 
V.  Downev,  3  Ired.  Eq.  268 

41,  173 
V.  Ferguson,  90  Ind.  229 

42,  91,  94, 140,  147,  173 
V.  Hardv,  36  Wis.  417  105,  156 
V.  Henry,  2  Bail.  (S.  C.)  L. 

118  160,  166,  471 

V.  Hines,  10  Fla.  258  474 

V.  Jones,  8  Ark.  109  8 

V.  Kav,  7  H.  L.  Cas.  751  453 

V.  Kittridge,  21  Vt.  238  27,  268 
V.  Lee,  2  S.  &  C.  (N.  Y.)  591  333 
V.  Littlejohn,  2  McCord,  362 

159,  230,  469 
V.  Lyne,  2  Y.  &  Coll.  N.  C. 

345  436 

V.  Maine,  25  Barb.  33 

191,  196,  199,  205,  208,  209 


Smith  V.  Montgomery,  5  T.  B. 

Mon.  503  7,  213,  219,  222 

V.  Osborn,  33  Mich.  410  52 

V.  Ossipee  Valley  Savings 
Bank,  64  N.  H.  228;  S.  C. 
10  Am.  St.  Rep.  400 

180,  321,  324 
V.  Rumsev,  33  Mich.  183  472 

V.  Smith, '3  Bing.  N.  C.  29  199 
V.  Smith,  7  C.  &  P.  401 

86,  87,  159 
V.  Smith,  5  Ves.  721  524 

V.  Smith,  2  Str.  955  134 

V.  Smith,  21  Ala.  761 

539,  594,  614 
V.  Smith,  12  Cal.  216  496 

V.  Smith,  59  Me.  214  541 

V.  Smith,  3  Stew.  (N.  J.)  564  26'.» 
V.  Smith,  30  N.  J.  Eq.  564  32 

V.  Smith,  2  Halst.  Eq.  515  480 
V.  Speer,  34  N.  J.  Eq.  336  322 
V.  Strahan,  25  Tex.  103  197 

V.  Warde,  15  Sim.  56  357,  436 
V.  Wheeler,  1  Vent.  128  229 

V.  Wiggins,  8  Stew.  (Ala.)  221  162 
V.  Woodville,  etc.,  Co.,  66  Cal. 

398  56 

V.  Yocum,  110  111.  142      377,  39it 

Smither  v.  Smither,  30  Hun,  632  302 

Smyley  v.  Reese,  53  Ala.  89  52 

Snellgrove  v.  Bailey,  3  Atk.  214 

115,  191,  233,  235 
Snelgrove  v.  Snelgrove,  4  De  S. 

274  535 

Snelling's  Case,  5  Co.  Rep.  82  b.    502 
Snillings  v.   Norton,   Cro.  EHz. 
409,  Com.  Dig.  Adminis- 
trata  A.  502 

Snow  V.  Copley,  3  La.  Ann.  610  474 
Snowden  v.  Pope,  Rice  Eq.  (S.  C.) 

174  200 

Soar  V.  Foster,  4  Kay  &  J.  152  : 

S.  C.  4  Jur.  N.  S.  406    570,  571 
Soberanes  v.  Soberanes,  31  Pac. 

Rep.  910  443,  445,  449 

Sockwell  V.  Bateman,   1   South. 

(N.  J.)  364  576 

Soileau  v.  Rougeau,  2  La.  Ann.  766  (50 
Somers  v.  Overhulser,  67  Cal.  237  546 
Somerville's  Est.,  2  Connelly,  86; 

S.  C.  20  N.  Y.  Supp.  76        134 
Sourwine  v.  Clavpool,  138  Pa.  St. 

126  '  197, 377,  419 

Southall  r.  British,  etc.,  Asso.,  L. 

R.  ()  App.  614  58 

Southerland    v.   Southerland,    5 

Bush.  591  133, 147,  241,  418, 429 
Souverbye  v.  Arden,  1  Johns.  Ch. 

240  425 


Table  of  Cases   Cited. 


Gr>9 


Sower  ?'.  Weaver,  84  Pa.  St.  262  376 
Spaulding  v.  Blythe,  73  Ind.  93  473 
Spear  v.  Griffith,  86  111.  552  6 

Speer  v.  School  Directors,  50  Pa 

St.  150  159 

V.  Speer,  1  McCart,  240  520 

Spelman  r.   Aldrich,   126  Mass. 

113  51 

Spencer  v.  Spencer,  3  Jones  Eq. 

404  480,  483,  492,  493 

V.  Vance,  57  Mo.  427  66 

Sperrj^  v.  Horr,  32  la.  184  59 

Spiers  v.  Alexander,  1  Hawks,  67  107 
Spires  v.  Willison,  4  Cranch.  398  106 
Sprandlin  r.  Sprandlin,  18  S.  W. 

Rep.  14  392 

Spratley  v.  Wilson,  Holt,  N.  P.  10  106 
Spring  V.  Hisht,  22  Me.  408  213,  570 
Springer's  Appeal,  29  Pa.  St.  208  564 
Squire  v.  Dean,  4  Bro.  C.  C.  326  211 
St.  George  v.  Wake,  1  Mv.  &  K. 

610  479,  482,  488,  490 

St.  Leger's  Appeal,  34  Conn.  434 

447,  456 
St.   Joseph's    Orphan  Society  v. 
Wolpert,  80  Ky.  86 ;  S.  C. 
3  Kv.  L.  Rep.  573  86 

St.  Vrain,  In  re,  1  Mo.  App.  294  603 
Stallings  v.  Finch,  25  Ala.  518 

106,  111,  201 
V.  Stallings,  1  Dev.  (N.  C.)  Eq. 
298  216 

Standing  v.  Bowrinff,  31  Ch.  Div. 
282;  S.  C.55L.J.Ch.218; 
54  L.  S.  191 ;  34  W.  R.  204, 
affirming  27  Ch.  Div.  341 

69,  143,  229,  356,  427 
Stanhope's  Case,  1  L.  R.  Ch.  161  365 
Staniland  r.  Willott,  3  MacN.  & 

G.  664  19,  21,  37,  41,  44,  99,  364 
Stanley  v.  Brannon,  6  Blackf.  193 

522,  549 
V.  Stanley,  1  Atk.  457  505 

Stanton  v.  Miller,  58  N.  Y.  192, 

reversing  1  T.  &  C.  23  376,  400 
Stanw^ood  v.  Stanwood,  17  Mass. 

57  49,  344,  354 

Staplford,  In  re,  49  L.  J.  (Ch.)  253  57 
Star  V.  Star,  9  Ohio  St.  74  268 

Starr  v.  Vanderheyden,  9  Johns. 

253  456 

State  V.  Atkinson,  24  Vt.  448  GO 

V.  Bethune,  8  Ired.  L.  1  :'.9  21 7 
V.  Campbell,  S.  U.  P.  Charl- 
ton, 166  507 
V.  Crosslev,  69  Ind.  203  514 
V.  Decker,  10  W.  L.  Jr.  328  7 
V.  Jameson,  3  G.  &  J.  442 

522,  552,  554 


State  V.  Richland  Twp.,  20  Ohio, 

362  50 

V.  Rickey,  4  Halst.  312  288 

V.  Stephenson,  12  .Mo.  178        561 
V.  Tappan,  29  Wis.  6(>1 ;  S.  C. 

9  Am.  Rep.  622  59 

V.  Walker,  36  Kan.  297  497 

State  Board    of    Agriculture    r. 

Citizens'  St.  Ry.,  47  Ind.  407  56 
State  Treasurer  r.  Cross,  9  \'t.  2s9  275 
Staufier  v.  Morgan,  39  Lii.  .\nn. 

632  ;  S.  C.  2  So.  Rej).  9S  94 

Stayner  v.  Bower,  42  Ohio  St. 

314  529 

Stebbins  v.  Morris,  23  Blatchf. 

181  ,547 

Steedman  v.  M'Neill,  1  Hill  L. 

(S.  C.)  194  7 

Steele  v.  Frierson,  85  Tenn.  430     519, 

520,  541,  543,  556,  574,  575,  610 

Steere  v.  Steere,  5  Johns.  Cii.  1      547 

Stephenson  v.  King,  81   Kv.  425 

117,  139,  142,174,241 
Sterling  v.  Wilkinson,  83  Va.  791 

106.  143 

Stetson  V.  Kempton,  13  Mass.  272    59 

Stevens,  In  re,  83  Cal.  322  80 

V.  Corbitt,  33  Mich.  458  21^ 

t'.  Stevens,  70 -Me.  92  213 

V.  Stevens,  5  T.  <N:  C.  87  241 

V.  Stevens,  2  Hun,  470       52,  12^;. 

133,  255,  470 

V.  Stevens,  2  Redf.  2()5         ()2,  (i5, 

205,  224,  3(W 

V.  Work,  81  Ind.  445  470 

Stevenson  v.  Colg-an,  91  Cal.  (U9      54 

V.  King,  81  Kv.425  U6 

V.  Martin,  11  Bush.  485  521,  526, 

528,  532,  60(5,  (iO« 

V.  State,  6.5  Ind.  40i)  7 

Steward  v.  Weed,  11  Ind.  92  71 

Stewart's  Estate,  137  Pa.  St.  175 

55,451,459 
V.  Cheathan),  3  Ycrg.  59  220 

V.  Hamilton  College,  2  lX*nio, 

40;!  '  2.M 

r.  Hidden,  13  Minn. 43  .3.  241.  '2W 
V.  Pattison,  8  Gill  (M<l.).  46 

52S,  5.;(>,  5.56,  5!>0 

r.  Stewart,  5  O  mn.  317  495 

V.  Stewart,  3  Watts,  25;;    :579.  404 

t'.  Stewart,  7  J.  J.  Mar.  is;{      45i» 

Stileman  v.  Ashdown,  2  Atk.  4S0 

549,  555 
Stiles  I'.  Stiles,  14  Mich.  72  52 

Stock  r.  McAvov,  15  L.  R.  Eq.  55  ; 
S  C.  42  L.  J.  Ch.  2;;0;  21 
W.  R.  520;  27   L.  T.  441 

574,  575,  592,  594 


660 


Table  of  Cases  Cited. 


Stokes  V.  Oliver,  76  Va.  72 

376,  385,  469 
Stokesberry  v.  Reynolds,  57  Ind. 

425  "  542 

Stone  r.  Bishop,  4  Clif.  593;  S.  C. 

6  Repr.  706  338,  424 

V.  Hackett,  12  Gray,  227  86,    140, 
147,  180,  362,  415,  420,  436 
V.  Halley,  1  Dana,  197  602 

V.  Stone,  18  Mo.  389  496 

V.  Stone,  3  Jur.  N.  S.  708  569 

V.  Stone,  L.  R.  5  Ch.  74  440 

V.  Stroud,  6  Rich.  L.  306  200 

Storey's  Appeal,   83   Pa.   St.   89 

524,  526,  596 
Stay  V.  Stay,  41  N.  J.  Eq.  370  50,  242 
Strathmore  •;•.  Bowes,  481 

Strauss  r.  Avers,  34  Mo.  App.  248 

App.  248  468,  474 

Strain  v.  O'Hara,  86  111.  53  468 

Strong  V.  Menzies,  6  Ired.   Eq. 

544  481 

Strother  v.  Mitchell,  80  Ya.  149 

514,  538 
Stump  V.  Roberts,  Cooke  (Tenn.) 

350  217 

r.  Stump,  26  Ohio  St.  169  528, 529 
Sturdevant  v.  Goodrich,  3  Yerg. 

95  536,  603 

Succession    of    Cucullu,    9    La. 

Ann.  96  604 

De  Pouilly,  22  La.  Ann.  97 

242,  294 
Guillory,  27  La.  Ann.  495  612 
Hale,  26  La.  Ann.  195  185 

Hardesty,  22  La.  Ann.  332  58 
Montamat,  15  La.  Ann.  332  561 
Maser,  12  Rob.  5&4  54 

Tournillon,  15  La  Ann.  263 

524,  540,  561,  563 
Suissse  r.  Lowther,  2  Hare,  424  509 
Summerlin  r.  Gibson,  15  Ala. 406  ; 

S.  C.  64  Cal.  346      172,  177,  178 
Sumner  v.   IMurphv,   2  Hill    L. 

487  '  226 

Sutton  r.  Cole,  3  Pick.  232  59,  60 

Swaine  v.   Perine,  5  Johns.  Ch. 

482;  S.  C.  9  Am.  Dec.  318  494 
Swan  r.  Frick,  34  Md.  139  422 

Swanneck  v.  Lyford,  Co.  Litt.  108 

n.  L.  495 

Swartz  V.  Earls,  53  111.  237  88 

V.  Hazlett,  8  Cal.  118        222,  228 
Sweeney  v.  Boston,  etc.,  Bank,  1 16 

Mass.  384  345 

Sweet  V.  Northrop,  12  Wk.  Dig. 

337  84 

Swihart  v.   Snaum,  24  Ohio  St. 

432  78, 568 


Switzer  v.  Switzer,  26  Gratt.  574  213 
Syler  v.  Eckhart,  1  Bin.  378  376 

Taber  v.  Willetts,  44  Hun,  346  ; 
S.  C.  8  N.  Y.  St.  Repr.  825 

184,  185,  241 
Taft  V.  Marsily,  120  N.  Y.  474  2 

Talbot  V.  Cody,  L.  R.  10  Ir.  Eq. 

138       '  540, 571, 572 

Tanner  v.  Skinner,  11  Bush.  120  420 
Tarbell  v.  Tarbell,  10  Allen,  278  458 
Tarlton  v.  Briscoe,  4  Bibb.  73  12 

Tash  V.  Adams,  10  Cush.  252  58 

Tate  V.  Gilbert,  2  Ves.  Jr.  Ill ;  S. 

C.  Bro.  Ch.  286    19.  20,  45,  299 

V.  Hilbert,4  Brown  Ch.  286; 

S.  C.  2  Yes.  Jr.  Ill  21,  27, 

173,  267,  270,  292,  304,  350,  473 

V.  Leithead,  Kay,  658  38,  46, 

69,  295,  426 

v.  Tate,  1  Dev.  &  B.  Eq.  22      487 

Tatham  v.  Yernon,  29  Beav.  &40  428 

Tavlor  v.  Fire  Department,  1  Ed. 

Ch.  294  2,  105 

V.  Henry,  48  Md.  550  ;  S.  C. 
30  Am'.  Rep.  486    22, 27, 29, 37, 
68,  98, 105,  311,  321,  329,  424 
V.  Johnson,  113  Ind.  164  468,  469 
V.  Johnston,   L.   R.   19  Ch. 
Div.  403;    S.   C.   51  L.  J. 
Ch.  Div.  879 ;  46  L.  T.  N. 
S.  219 ;  30  W.  R.  508  462 

V.  Kelly,  5  Hun,  115  115 

V.  Lendey,  9  East.  49  87 

r.  McRa,"3  Rich.  Eq.  96  55 

V.  Miles,  19  Ore.  5.50         549,  570 
V.  Muller,  19  Ore.  550  522 

r.  Pugh,  1  Hare,  608  480, 482, 487, 
488,  491 
V.  Reese,  4  Ala.  121  602,  603,  604 
r.  Rickman,  Busbee  Eq.  278  490 
V.  Staples,  8  R.  I.  170  268 

^>.  Staples,  8  R.  1.170;  S.  C. 

5  Am.  Rep.  556  382 

V.  Tavlor,  1  Atk.  386  549 

V.  Tavlor,  L.  R.  20  Eq.  155 ; 

S.  C.44L.  J.  Ch.718      11,561 
r.  Tavlor,  5  Humph.  597  378 

V.  Tavlor,  8  How.  183  461 

r.  Tavlor,  56  L.  J.  Ch.  597 

134,  307 
V.  Tavlor,  1  Lea.  83  83 

V.  Tavlor,  4  Gilm.  303      549,  570 
Teague  ?•.' Griffin,  2  N.  &  McC.  93 

103,  217 
Tenbrook  v.  Brown,  17  Ind.  410 

125,  450,  459 
Terry  v.  Davton,  31  Barb.  519 

539,  600 


Table  of  Cases  Cited. 


6C1 


Terry  v.  Hopkins,  1  Hill  Ch.  (S. 

C.)  1  480,  482,  489 

V.  O'Neal,  71  Tex.  592       4GS,  469 

Thacher  v.  Phinney,  7  Allen,  14(5  470 

Tharpe  v.  Dunlap,  4  Heisk.  674      74 

Thayer  v.  Thayer,  14  Vt.  107;  S. 

C.  39  Am.  Dec.  211  495 

Thistlewaite  v.  Thistlewaite,  132 
Ind.  355;  S.  C.  31  N.  E. 
Rep.  946  576,  579,  595 

Thomas  v.  DegrafFenreid,  17  Ala. 

602  202,  231,  270,  471 

V.  Lewis,  15  S.  E.  Rep.  (Va.) 

389  41,  104,  114, 139,  195,  312 
V.  Thomas,  107  Mo.  459 

68,  213,  229 
V.  Williams,  More,  177 

479,  487,  488,  489 
Thompson's  Appeal,  42  Pa.  St. 

345  581,  583 

Thompson's  Estate,  8  W.  N.  Gas. 

16  611 

Thompson  v.  Carmichael,  3  Sandf. 

120  535,  536 

V.  Doi-sey,  4  Md.  Ch.  149  169 

V.  Ellsworth,  1  Barb.  Ch.  624  267 
V.  Gordon,  3  Strobh.  L.  196  229 
V.  Hefferman,  4  D.  &  War. 

(Ir.)  285  21 

V.  Hefferman,  4    Sug.  Dec. 

(Ir.)  285  192,  194,  456 

V.  Leach,  2  Vent.  208  71,  229,427 
V.  Mercer  Co.,  40  111.  379  278 

V.  O'SuUivan,  6  Allen,  303  51 
V.  Page,  1  Met.  565  274 

V.  Pittson,  59  Md.  545  59 

V.  Thompson,  1  Yerg.  97  602 

V.  Thompson,  20  S.  W.  Rep. 

373  392 

V.  Thompson,  2  How.  (Miss.) 

737  172, 177 

V.  Thompson,  12  Tex.  327 

27,  29,  41 
V.  Womack,  9  La.  Ann.  555 

177,  182 
Thornton  v.  Mulquinne,  12  Iowa, 

549  5 

Thorpe  v.  Owen,  5  Beav.  224  ;  S. 
C.  11  L.  J.  Ch.  N.  S.  129 

415,  418,  433 
Thouvenin  v.  Redrigues,  24  Tex. 

498  68,  74,  225 

Thrasher  v.  Anderson,  51  Ga.  542  566 
Threlkel  v.  Scott,  89  Cal.  351  468 

Thrupp  V.  Harman,  3  My.  &  K. 

513  211 

Thm-ber  v.  Sprague,  24  Atl,  Rep. 

48  215 

Tiernan  r.  Parr,  1  GiU.  &  J,  216    423 


Tifikny  v.  Clarke,  6  Gr.  Ch.  (Can.) 

474  247 

Tillingha-st  v.  Wheaton,  8  R.  I. 

5.J6  ;  S.  C.  5  Am.  Rep.  621    .317 
Tillman  v.  Moseley,  14  La.  Ann. 

710  12 

Tinsley  v.  Tinslev,  52  la.  14  546 

Tisdale  v.  Bailey*  6  I  red.  Eq.  358 

480,  481,  488,  489,  493 
Tison  c.  Tison,  12  Ga.  208 ;   S.  C. 

14  Ga.  167  615 

Todd  V.  Grove,  33  Md.  188      450,  462 

V.  jNIoorhouse,  19  L.  R.  Etj.  m  h?>2 

V.  Wicklifle,  18  B.  :Mon.  866    4(^ 

Toker  r.  Toker,  31  Beav.  644  447 

Tolar  r.  Tolar,  1  Dev.  (N.  C.)  E(i. 

460  420,  436 

Tomlinson  v.  Ellison,  104  Mo.  105 

63,  109,  142,  204 
Tomkvns  v.  Ladbroke,  2  Ves.  Sr. 

'591  15 

Tompkinson  v.  South,  etc.,  Rv., 

35  Ch.  Div.  mo  '       56 

Tomyns  v.  Ladbroke,  2  Ves.  Sr. 

591  507 

Tootle  V.  Coldwell,  30  Kan.  125  4(iH 
Toplis  V.  Hevde,  4  G.  &  C.  173  20(> 
Tower  v.  Detroit,  etc.,  R.  R.  Co., 

34  IMich.  329  278 

Towle  V.  Towle,  114  Mass.  167 

2&4,  265 
r.  Ward,  60  N.  H.  434  328 

Towles  t:  Roundtree,  10  Fla.  290 

528, 530 
Townsend,  Li  re,  5  Dem.  (N.  Y.) 

147  ItW 

Townsend  r.  Toker,  1  Ch.  .Ajip. 

446 ;  12  Jur.  X.  S.  477  ;  .5.> 

L.  J.  Ch.  60S:    14  W.  H. 

806  ;  14  L.  T.  N.  S.  5:U  .•)76 

Townsf.n  c.  Tickell,  3  B.  c^  Aid. 

31  71 

Trammell  v.  Simmons,   17   Ala. 

411  408 

Travis  r.  Travis,   12  Ont.   App. 

438;  S.C.  affirming  8  Ont. 

516     107,  128,  1.30,  13(5,  143,2tJ3 
Treacev   v.   Liggett,   Low.  Can. 

Jur.  181  469 

Treadwell  v.  Cordis,  5  Gray,  341 

.5;{8.  609 
Tremper  r.  Barton,  18  Ohio,  418  54!) 
Trench  r.  Harrison,  17  Siin.  Ill  546 
Trenholm  v.  Morgan,  28  S.  C.  2(i8 

16,22.23,105,241,2-16 
Tresch  v.  Wirtz,  34  N.  J.   Eq. 

124  ^ 

Trimmer  v.  Danbv,  23  L.  J.  Ch. 

979  21 


662 


Table  of  Cases   Cited. 


Trimmer  v.  Darby,  25  L.  J.  Ch. 
424  ;  S.  C.  4  W.  R.  399 

112,  137, 176,  428 
V.  Bayne,  7  Ves.  608  596 

Trorlicht  v.  Weizenecker,  1  Mo. 

App.  482  45,  140,  418 

Trough's  Estate,  75  Pa.  St.  115 

66,  107,  109,  119,  120,  423,  431 
Trow  V.  Shannon,  78  N.  Y.  446, 

affirming  8  Daly,  239  180 

Trowbridge  v.  Holden,  58  Me. 

117  189,  230,  241 

Trowell  v.  Carraway,  16  Heisk. 

104  86 

Trov    Conference    Academy  v. 

Nelson,  24  Vt.  189  275 

Truman  r.  Truman,  79  la.  506 

375,  404 
Trustees  of  Hanson  v.  Stetson,  5 

Pick. 506  274 

Trustees  of  Parsonage  Fund  v. 

liiplev,  6  Green!.  442  275 

Tucker  v.  Burrow,  2  H.  &  M.  515  523 
Tryon  v.  Huntoon,  67  Cal.  325  212 
Tucker  v.  Andrews,  13  Me.  124 

480,  493 

V.  Burrow,  2  H.  &  M.  515        554 

V.  Tucker,  29  Mo.  350 ;  S.  C. 

32  Mo.  464  496 

Tufnell  V.  Constable,  8  Sim.  69      262 

Tuggle  V.  Tuggle,  57  Ga.  520   555,  594 

Tullis  V.  Fridley,  9  Minn.  79    49.  241 

Turnbridge  v.  Care,  19  W.  R.  1047  ; 

S.  C.  25  L.  T.  (N.  S.)  150        357 
Turpin  v.  Thompson,  2  Met.  420   241 
V.  Turpin,  88  Mo.  337  535 

Turner  v.  Brown,  6  Hun,  331        214 
V.  Collins,  L.  R.  7  Ch.  App. 
Cas.  329 ;  S.  C.  25  L.  T.  N. 
S.  374  371 

V.  Five  Cents  Savings  Bank, 
129  Mass.  425;  S.  C.  37 
Am.  Rep.  371  79 

)'.  Kelly,  67  Ala.  173  606 

V.  Thurmond,  28  Geo.  174        228 
V.  Turner,  53  L.  T.  379        11,  575 
V.  Turner,  1  Wash.  (Va.)  139  106 
Tussaud's  Estate,  L.  R.  9  Ch.  Div. 

363  380,  515 

Twentv-Third  Street  Church  v. 
Cornell,  117  N.  Y.  601;  S. 
C.  24  J.  &  S.  260  274 

Twist  V.  Babcock,  48  Mich.  513 

445,  464 
Tyars  v.  Alsop,  61  L.  T.  8 ;  S.  C. 
37  W.R.  339;  53  J.  P.  212; 
5  T.  L.  R.  242,  affirming 
59L.T.  367;  S.C.36W.  R. 
919  456, 464 


Tvler  V.  Gardiner,  35  N.  Y.  559  450 
Tyndale  v.  Randall,  154 Mass.  103  77 
Tyrrell  v.  Bank  of  London,  10  H. 

L.  26  rw 

V.  York,  57  Hun,  292    49,150, 152 

Uhlich  V.  Muhlke,  61  111.  499  453 
Underwood  v.  Waldron,  12  Mich. 

73  275 

Unglev  V.  Unglev,  4  Ch.  Div.  73  ; 

S.  C.  46  L.  J.  Ch.  189  ;  25 

W.  R.  39 ;  35  L.  T.  N.  S. 

619 ;  19  Moak,  678,  affirmed, 

5  Ch.  Div.  887  ;  S.  C.  46  L. 

J.  Ch.  854 ;  25  W.  R.  733 ; 

37  L.  T.  N.  S.  52  389,  406 

Uniacke  v.  Giles,  2  Moll,  257  425 

Union   Mutual  Life  Ins.   Co.  v. 

FreanStoneMfg.Co.,97  111. 

537  ;  S.  C.  37  Am.  Rep.  129  366 
University  of  Vermont  v.  Buell, 

2  Vt.  48  277 

Upton  V.  Prince,  Cas.  t.  Talb.  71    538 

V.  Tribilcock,  91  U.  S.  45         366 

Urann  v.  Coates,  109  Mass.  581      425 

Uzzle  V.  Wood,  1  Jones   (N.  C.) 

Eq.  226  436 

Vachell  v.  Jeffreys,  Pres.  Ch.  170 ; 

S.  C.  2  Eq.  Cas.  Abr.  435, 

pi.  7  535 

Vaden  v.  Hance.  1  Head,  300  5(i3 
Vail  V.  Vail,  10  Barb.  69  512 

Valsain  v.  Cloutier,  3  La.  176  54 

Van    Amburgh    v.  Kramer,   16 

Hun,  205  242,  273 

Van  Arsdale  v.  Perry,  21  N.  Y. 

Wk.  Dig.  116  376 

Van  Cott  V.  Prentice,  104  N.  Y. 

45  437 

V.  Van  Brunt,  2  Abb.  N.  C. 

283  ;  S.  C.  82  N.  Y.  535  366 
Van  Deusen  v.  Rowley,  8  N.  Y. 

358  _  347, 443 

Van  Home,  In  re,  7  Paige,  46  461 
Van  Rensselaer?;.  Aiken,  44  Barb. 

547  275,  278,  280 

Van  Stooten  v.  Wheeler,  21  N. 

Y.  Supp.  336  27,  227 

Vance  v.  Huling,  2  Yerc.  135  53(),  603 
V.  Vance,  1  Beav.  605  266, 550, 671 
Vandenberg  v.  Palmer,  4  Kav  & 

J.  204  338,435,436 

Vandermark  v.  Vandermark,  55 

How.  Pr.  408  310 

Vandor  v.  Roach,  73  Cal.  ()14  22 

Vansant  v.  Roberts,  3  Md.  119  58 
Vanzant  v.  Davies,  6  Ohio  St.  52  217 
Vass  V.  Hicks,  3  Murphv,  493        177 


Table  of  Cases  Cited. 


G(33 


Vaughn  v.  Guy,  17  Mo.  429  78,  182 
Yeagie  v.  China.  50  Md.  518  59 

Yeai  u.  Veal,  27  Beav.  303,  6  Jur. 

(N.  S.)  527;  29  L.  J.  Ch. 

321  21,  235,  239 

Vendor  v.  Roach,  73  Cal.  614  55 

Ventreps  v.  Brown,  34  La.  Ann. 

448  89, 91 

Vestrv,etc..  r.Barksdale,  IStrohh. 

'Eq.  197  83 

Villiers  v.  Beaumont,  1  Vern.  100 

87,445 
Vincent  v.  Murray,  15  N.  B.  375 

391,  396 
Vinden  v.  Frazer,  28  Gr.  (Can.) 

502  189,  210 

Viney  v.  Abbott,  10  Mass.  300  436 
Virgin  v.  Gaither,  42  111.  39  35,  468 
Vogel  V.  Gast,  20  Mo.  App.  104 

66,  145 
Vogle  V.  Hushes,  2  Sm.  &  G.  18 ; 

S.  C.  i8  Jur.  341 ;  23  L.  J. 

Ch.  328  172,  253 

Volois  V.  Gareau,  2  Rev.  Leg.  131  81 
Voorhees  v.  Combs,  33  N.  J.  L. 

494  32,  268 

Voyle  V.  Hughes,  2  Sm.  &  Gif.  18 ; 

S.  C.  23  L.  J.  Ch.  238 ;  18 

Jur.  341 ;  2  Eq.  Rep.  42 ;  2 

W.  R.  143  429 

Vreeland  v.  Ryno,  26  N.  J.  Eq. 

160;    S.   C.   27  N.  J.  Eq. 

522  213 


Wack  V.  Sorber,  2  Whart.  387 ; 

R.  C.  30  Am.  Dee.  269 
Wadd  V.  Hazleton,  62  Han,  602 
125, 
Wade  V.  Green,  3  Humph.  547 
Wadhams  v.  Gay,  73  III.  415 
AVainwrisht's  Estate, 37  Leg.  Int. 

104 
Wakefield  r.  Gilliland,  13  Ky.  L. 
Rep.  845 
V.  Gilleland,    18  S.  W.   Rep. 
368  534, 

Walden  v.  Dixon,  5  T.  B.  Mon. 
170 
?;.  Purvis,  73  Cal.  518 
Wales  V.  Newbould,  9  Mich.  45 
Walker  v.  Brooks,  99  N.  C.  207 

602, 

V.  Crews,  73  Ala.  412     2,  64, 

109,  110,  119,  140,  170,  241, 

V.  ?Iunter,  17  Geo.  'Myi 

r.  Williamson,  25  Ga.  549 

Wall  V.  Provident  Institution  for 

Savinirs,  3  Allen,  96 
Wallace  v.  Berdell,  97  N.  Y.  13 


387 

426 
217 

382 

539 
611 

539 

86 

199 

52 

603 
105, 
424 
449 
535 

343 
437 


PAGE 

Wallace  v.  DuBois,  Go  Md.  153       515 

V.  Oven,  71  Ga.  541       11,  S4,  516, 

517,  518,  574,  577,  582 

V.  Reddick,  119  111.  151     511,  520, 

522,  540,  552,  5.^6 

Wallaston  v.  Tribe,  9  L.  R.  E(i. 

44  437 

Waller  v.   Armit^tead,   2    Leigh, 

11  4S0 

"Walrond  v.  Walrond,  4  Jur.  N. 

S.  1099  419 

Walsh's  Appeal,  122  Pa.  St.  177  ; 
S.C.I  L.  K.Ani.  5.35;  S.  C. 
9Am.  St.  83  127,140,320 

Walsh  V.  Bowery  Savings  I'ank, 
15Dalv,4b3;  S.C.26N.  Y. 
St.  Rep.  95 ;  28  N.  Y.  St. 
Rep.  402 ;  7  N.  Y.  Siij.p. 
97,  669  231,  :;20,  231 

V.  Chambers,   13   Mo.  Ai^p. 

301  49 

V.  Kennedy,  9  Phila.  178  ;  S. 
C.  2  W.  N.  C.  437  ;  31  Lt^g. 
Int.  ()0  32,  140,  2fW 

V.  Mclntire,  68  Md.  402  392 

V.  Sexton,  55  Barb.  251 

241,347,350 
V.  Studdart,  6  Irish  Eq.  161 ; 
S.  C.  4  Sug.  Dec.   Ir.   139; 
2  Con.  it  I^w  (Ir.)  423  195,  4.55 
AValts  V.  BuUas,  1  P.  "W  lus.  60        523 
Walter  v.  Ford,  74  Mo.  195 

10.5,  145,  304 
V.  Hodge.  Wils.  Ch.  445 

21, 49, 190, 193,  208,  212. 214. 231 
Walton  V.  Walton,  7   Irtd.  Eq. 

138  «11 

r.  Walton,  70  111.  142  '^'i 

r.  Walton,  14  Ve.-.  317      322.  5;i5 
Wambold  v.  Vick,  50  Wi.«.  456 

150,  473 
Wamslev  v.  Lincicum.  <>S  la.  550  399 
Wandel'  In  rr,  Hi  Phila.  230:  S. 

C.  40  Letr.  Int.  131        20«".,  20!> 
AVanmaker  r.  Van  P.uskirk,  1  N. 
J.  Eq.  68.5;    S.  C.  23  Am. 
Dec.  748  52S,  609 

Ward,  Matter  of,  2  Rcdf.  251 :  S. 
C.  51  How.  Pr.  316 

62.6.5,214.266,320 
V.  Andlord,  Ki  M.  &  W.  .Mi2    P23 
V.  Andland.  8  Beav.  201  :  S. 
C.  14  L.  J.  N.  S.  Cli.  145; 
9  Jur.  :IH4  1*^'.  '•^' 

V.  Liint.  Prec.  Ch.  182  42.'> 

V.  Turner,  2   Vos.   S<'ii.  431 
19,  20,  21,  36.  174,  234,  2(i0.  .35/ 
Wardens',  etc.,  St.  James  Cluinh. 

f.  Rector,  etc.,  45  Barb.  3.56   56 


664 


Table  of  Cases   Cited. 


Ware  r.   Hamilton  Shoe  Co.,  92 

Ala. 145  473 

V.  Welsh,  10  Mart.  (La.)  430    612 
Warfield  v.  Warfield,  5  H.  &  J. 

459  600 

Waring  v.  Edmonds,  11  Md.  424 

123,  125,  147 
Warren  v.  Warren,  105  111.  568 

376,  395, 405,  410 
Warriner  v.  Rogers,  L.  R.  16  Eq. 
340;   S.   C.  42  L.    J.   Ch. 
581 ;  21  W.  R.  766 ;  28  L. 
T.  N.  S.  863    136,  172,  370,  414, 
417,  420 
Washburn  v.  Goodheart,  88  111. 

229  472 

Watkins  v.  Eames,  9  Cush.  537      274 
V.  Young,  31  Gratt.  84      556,  577 
AVatson's  Estate,  2  W.  N.  Cas.  113; 

S.  C.  32  Leg.  Int.  404  611 

Watson  V.  Bradshaw,  6  Ontario 

App.  666  184 

V.  Kennedy,  3  Strobh.  Eq.  1 

7,  197,  2.30 
V.  Murray,  54  Ark.  499  532,  569 
V.  Watson,  6  Watts,  254  538 

V.  Watson,  .33  Beav.  574  538 

V.  Watson,  14  Ves.  317  535 

AVatt  V.  Grove,  2  Sch.  &  Lef.  492 

446,  455 
Watts  V.  BuUas,  1  P.  Wms.  60        440 
V.  Starr,  86  Geo.  392  86 

Waver  v.  Waver,  15  Hun,  277       230 
Way's  Trusts,  10  Jur.  N.  S.  836 ; 
S.  C.   2  De   G.,  J.  &  Sm. 
365;  34   L.  J.  Ch.  49;    13 
W.  R.  149  170,  425,  436 

Way's  Settlement,  10  Jur.  (N.  S.) 
1166;  S.  C.  34  L.  J.  Ch. 
49;  2  1)e  G.,  J.  &  Sm.365, 
reversing 4  New  R.  453  428,429 
Wayne  and  Ontario  Collegiate 
Institute  v.  Smith,  36  Barb. 
576  278 

V.  Greenwood,  40  Barb.  72      281 
V.  Devinney,  43  Barb.  220       278 
Waynesburg  College,  Appeal  of, 
111   Pa.   St.   1,30;  S.  C.  32 
Pitts.  L.  Jr.  4.37  303 

Weale  v.  Oliver,  17  Beav.  252  351 
Weall  V.  Rice,  2  R.  &  M.  251,  263  593 
Weatherhead  v.  Field,  26  V"t.  665 

513,  521,  574,  582,  590 
Weatherly    v.    Covington,    3 

Strobh.  L.  27  12 

Weatherslv  v.  Wheathersly,  36 

Miss.  652  213 

Weaver's  Appeal,  63  Pa.  St.  309  550 
Webb  V.  Goodby,  12  Rob.  539        524 


PAGE 

Webb  V.  Lyon,  5  Ired.  Eq.  67        567 

V.  Roff,  9  Ohio  St.  430       470,  472 

AVeber  v.  AVeber,  9  Daily,  211        331 

AVeems  v.  Andrews,  22  Ga.  43        593 

AA^eir  v.  Still,  31  la.  107  487 

AVekett  v.  liiibv,  3  Bro.  P.  C.  16    262 

AVells  V.  Caldvvell,  9  Humph.  609    83 

V.  Collins,  74  Wis.  341  143 

V.  Tucker,  3  Binn.  36 

21,  98,  99,  241 
AA^elton  v,  Devine.  20  Barb.  9  570 
Welsch     V.    Belleville     Savings 

Bank,  94  111.  191  ^^86,  33 

Welsh,  In  re,  Redf.  238  450 

AVertz  v.  Merritt,  74  la.  683  230,  399 
Weslevan  Seminary  v.  Fisher,  4 

Mich.  515  275 

AA^est  V.  Bolton,  23  Ga.  531 

522,  529,  563,  578,  587 
V.  Cavins,  74  Ind.  265  250 

V.  Flannaean,  4  Md.  36  387 

V.  Jones,  85  Va.  616  533,  612 

V.   AVest,  9  Ir.   L.  Rep.  121 
(1882)  351, 423 

AA'esterlo  v.  De  AVitt,  36  N.  Y. 
340;  S.  C.  2  Trans.  App. 
332 ;  93  Am.  Dec.  517 

241,  243,  251,  307 
Westerman    v.  AVesterman,    25 

Ohio  St.  500  493,  498 

AA'estminister  Bank  v.  Wheaton, 

4  R.  I.  30  292 

AVeston's  Case,  L.  R.  10  Ch.  Div. 

579  57 

AVeston  v.  Hight,  17  Me.  287    27,  252 

V.  Johnson,  48  Ind.  1  513 

V.  Richardson,  47  L.  T.  N.  S. 

514  249 

AVetherby  v.  Dixon,  19  A''es.  407 

412,  514 
AA^etmore    v.  Brooks,   18    N.  Y. 

Supp.  852  41,  46,  130 

AVeyland  v.  AVeyland,  2  Atk.  632  540 
AATialey  v.  AVhaley,  71  Ala.  159  547 
AVheat'herhead  v.  Field,  26  Vt.  p. 

668  516 

AVheatley  v.  Purr,  1  Keen,  551  435 
AVheeler  v.  Glasgow,  11  So.  Rep. 

758  1S9,  447 

V.  Laird,  147  Mass.  421  393 

r.  AVheeler,  43  Conn.  503  153, 154 

r.  AVheeler,  47  A't.  637  517 

AA^helen's  Appeal,  70  Pa.  St.  410 

5r>4,  609 
Whipple  V.  Dow,  2  Mass.  418  82 

Whittaker,  v.  Whittaker,  21  L. 
R.  Ch.  Div.  657 ;  S.  C.  51 
L.  J.Ch.Div.737;46L.  T. 
(N.  S.)  802;  30\V.  R.  787      75 


Table  of  Cases  Cited. 


665 


Whitaker.  r.  Whitaker,  52  N.  Y. 

386;  S.  C.  11  Am.  Rep.  711    268 

White  V.  Callinau,  19  Ind.  43         241 

V.  Cannon,  125  111.  412  65,  86 

V.  Jones,  14  La.  Ann.  681  83 

V.  Moore,  23  S.  C.  456 

561,  563,  582,  597 
V.  Wager,  25  N.  Y.  328  370 

V.  White,  52  Ark.  188       549,  613 
V.  White,  41  Kan.  556  614 

V.  AVhite,  3  Dana,  374  509 

r.  White,  16  Wkly.  Dig.  45      230 
v.  Zane,  10  Mich.  333  52 

White  Mountains   R.   R.  Co.  v. 

EaHtnian,  34  N.  H.  124  365 
Whiteliead,  Ex  parte,  14  L.  R.  Q. 
B.  Div.  419  ;  S.  C.  54  L.  J. 
Q.  B.  Div.  88 ;  S.  C.  52  L. 
T.  (N.  S.)  265 ;  33  W.  R. 
230  314 

Whitehorn  v.   Hinep,    1    IMunf. 

559  457 

Whitfield  V.  Whitfield,  40  Mif^s. 

352  7,  197,  200,  217,  222 

Whitesides  v.  Poole,  9  Rich.  L.  68 

189,  217,  220 
Whiting  V.  Barrett,  7  Lans.  106 

86,87 
Whitley  v.  Stephenson,  38  Miss. 

113  601 

Whitman's  Appeal,  2  Grant  (Pa.), 

323  581,  585 

Whitman  v.  Hapgood,  10  Mass. 

437  552,  588 

Whitnev  v.  Wheeler,  116  Mass. 

490  197 

Whiton  V.  Snyder,  88  N.  Y.  299  49 
Whitsilt  V.  Pre-emption  Preshy- 

terian  Church,  110  111.  125  278 
AVhitten  v.  Whitten,  3  Cush.  191  368 
Whitmell  v.  Winslow,  132  Mass. 

307  107 

Wickett  V.  Raby,  3  Bro.  P.  Cas. 

16  271 

Wigle  r.  Wigle,  6  Watts,  522  98 

Wilcocks  V.  Hannyngton,  5  Ir. 

Ch.  38  ■  415,  418,  428,  429 

Wilcox  V.  ]\Iattoson,  5.3  Wis.  23  140 
Wilder  r.  Bmoks,  10  Minn.  50  369 
Wildish   V.  Ft)wler,  6  T.  L.   R. 

422;  S.  C.  5T.  L.  R.  113       195 
Wilkins  v.  Wilkins,  43  N.  J.  Eq. 

595  610 

Wilkinson  r.  Thomas,  128  111.  363 

586,  587 
V.  AVilkinson,  4  Jur.  N.  S.  47 

419,  420,  422,  434 

Wilks  V.  Greer,  14  Ala.  437  177, 

540,  562,  590,  602,  606,  607,  611 


PAGE 

Willemin  v.  Dunn,  93  111.  511 

2-1,  443,  445 
Willetts  V.  Willetts,  19  Ind.  22  (iUl 
Wilev  V.  Backus,  52  Ja.  401  113 

Williard  v.  Williard,  56  Pa.  St. 

119  ■       580 

Williams  v.  Barton,  13  La.  409        64 
V.  Carle,  2  Stark.  (N.  J.)  Ch. 

543  480, 482,  489,  492 

V.  Conrad,  11  Huiuph.  411  1S2 
V.  Fitch,  18  X.  Y.  546  125,  43.S 
V.  Forbes,  114  111.  1()7  26,8 

V.  Guile,   117   N.  Y.  343,  af- 
firming 46  Hun,  645 

27,  28,  29,  35,  62 
V.  Rollings  worth,  1   Strobh. 

Eq.  103  516 

V.  McDowell.  54  (ia.  222  615 

V.  Mears,  2  Dis.  604,  (U4  ;  S. 

C.  4  West.  L.  :Mag.  293  5.r> 
V.  Mercier,  9  Q.  B.  Div.  337  .50 
V.  Powell,  1  Ired.  Eq.  460  ^  4tiL' 
V.   Vreeland,  32   N.  J.    Eq. 

135  43ti 

V.  Stonestreet,  3  Rand.  559  611 
V.  AValton,  8  Yerg.  387 ;  S.  C. 

29  Am.  Dec.  122  72 

v.  Western   Star  Lodge,  38 

La.  Ann.  620  58 

V.  AVilliams,  32  Beav.  370 

213.  554,  574,  575,  591 
V.  Williams,  15  Lea,  438 

419,  520,  574.  575,  579,  (W9,  (>10 
V.  Williams,  3  West.  L.  Mag. 
258  "^91 

Williamson  r.  Colcord,  1  liask. 

620  '^ 

r.  Jeffreys,  18  Jur.  1071  5.->4 

V.  Johnson,  62  Vt.  378;  S.  C. 

20  Atl.  Rep.  279  94 

Willis  r.  Matthews,  46  Tex.  478     376 

V.  Smvth,  91  N.  Y.  297  3;W 

Wills  V.  Cbwper,  2  Ohio,  124         606 

r.  Snelling,    6  Rich   L.  280 

218,  219 
Wilson's  Appeal,  99  Pa.  St.  ri45  4.V1 
Wilson  V.  Beauchamp,  44  Miss. 

556  ;346,  54.'<,  5«H) 

V.  Bull,  10  Ohio,  250  4<« 

f.  Carpenter,  17  Wis.  512  243 
v.  Cockrill.  8  Mo.  1  7S 

V.  Daniel,  13  B.  Mon.  .348 

47'>.  480,  4S1,4S'.» 

r.  Kellv,  21  S.  C  ^35  612 

V.  Miller,  1  P.  &   11.  (Va.) 

353  ^'^' 

V.  Wilson,  18  Ala.  176 

.528,  (K12,  6a3,  614 

Winans  v.  Peebles,  32  N.  Y.  423    370 


666 


Table  of  Cases   Cited. 


PAGE 

Winchester  v.  Charter,  12  Allen, 

606  468,  470 

V.  Charter,  102  Mass.  272         468 
Wing  V.  Merchant,  57  Me.  383 

118,  125,  241 
Winter"  r.  Winter,  101  E.  C.  L. 
997 ;  S.  C.  4  L.  T.  (N.  S.) 
639  ;  9  W.  R.  747  107,  126 

Wirt's  Estate,  5  Dem.  (N.  Y.)  179  246 
Witbeck  v.  Witbeck,  25  Mich.  439  52 
AVithers  v.  Weaver,  10  Pa.  St.  391 

176,  325 
Wittingliani  r.  Lighthij^e,  46  N. 

J.  Eq.  429  420 

Witzel  V.  Chai:)in,  3  Bradf.  386  342 
Wolfe  V.  Kable,  107  Ind.  565 

520,  552,  615 

Wolft's  Appeal,  123  Pa.  St.  438       567 

Wolford  V.  Power?,  85  Ind.  294  4,  253 

Wood  r.  Downer,  18  Ves.  127        461 

V.  Savage,  Walker  Ch.  Mich. 

471  469 

V.  St.  Louis,  etc.,  R.  W.  Co., 
20  Mo.  App.  601  194 

Woodbridge  v.  Spooner,  1  Chitty, 

661  272 

Woodbury    v.    Woodburv,    141 

Mass.  329       443,  444,  445,  450, 

451,  464 

V.  Gardner,  68  Me.  167  402 

Wooden  v.  Wooden,  72  IMich.  347  469 

Woodford  v.  Charnlev,  28  Beav. 

96  '  428, 429 

Woodman  v.  Morrel,  2  Freem.  33 

554,  569 
Woodruff?'.  Cook,  25  Barb.  505     199 
r.  Migeon,  46  Conn.  236  594 

Woods  c.  Whilney,  42  Cal.  358  4,  213 
Woodson  r.  Pearce,  5  Sneed,  415  86 
AVoodward  v.  AVoodwood,  5  Sneed, 

49  458 

AA^ollaston  v.  Tribe,  L.  R.  9  Eq. 

44  93,  99,  447,  448,  458 

AVoolery  v.  AVoolery,  29  Ind.  249 

197,  549,  574,  575,  576 
Wootters  v.  Hale,  19  S.  AV.  Rep. 

134  377 

AA'orcester  r.  Eaton,  13  Mass.  371  59 
AVorniley  r.  AA'ormley,  98  111.  544 

213,  549,  570 
AA'orrall  v.  Jacob,  3  Meriv.  256  437 
AVorth    r.  Case,   42   N.   Y.   362; 

affirniintr  2  Lans.  264  3,  4, 

27,  125,  181,254,268,269 
r.  AVorth,  84  111.  442  400,  402 

AVorthington    i\   Curtiss,    1    Ch. 

Div.  519  540 

AVrigley  v.  Swainson,  3  De  G.  & 

Sni.  458  483 


Wright's  Estate,  6  W.  N.  C.  388 ; 
S.  C.  89  Pa.  St.  67 ;  93  Pa. 
St.  82  594 

AVright  V.  Cartwright,  1  Burr.  282  182 
V.  Proud,  13  Ves.  138  456 

V.  A'anderplank,  8  De  Gex, 

M.  &  G.  133  461 

V.  AVright,  1  Cow.  598 

240,241,270,271 
Wvblev.  McPheters,  52  Ind.  393 

72,  140,  146 
AVycke  v.  Greene,  11  Ga.  159 

121,  170 

Yale  V.  Dederer,  22  N.  Y.  450        211 
Yancev  v.  Field,  85  A^a.  756   127,  203 
V.  Stone,  7  Rich.  Eq.  16  196 

V.    Yancey,    5    Heisk.    353 

515,  519,  533 
Yarborough  v.  AVest,  10  Geo.  471 

176,  423 
Yard  v.  Patton,  13  Pa.  St.  278  242 
Yates  r.  Houston,  3  Tex.  433  383 

Yeich's  Appeal,  1   Mona.  (Pa.) 

296  597 

Yesler    v.  Hochstettler,  30  Pac. 

Rep. 398  50 

Yonn  r.  Pittman,  82  Ga.  037  92 

Yong's  Estate,  3  Md.  Ch.  461 

542,  553 
Young  V.  Carter,  10  Hun,  194 ;  S. 
C.  1   Abb.  N.  C.   136;  50 
How.  Pr.  410  480,  495 

V.  Derenzy,  26  Gr.  (Ch.)  509    136 
V.  Glendenning,  6  Watts,  509 ; 

S.  C.  31  Am.  Dec.  492  386 

V.  Power,  41  Miss.  197      127, 131, 
132, 170, 187,  257,  260,  262,  263 
V.  Young,  25  Miss.  38  2 

V.  Young,    80    N.    Y.    422 ; 
S.   C.   36   Am.   Rep.  634; 
affirming  5  AVklv.  Dig.  109 
105, 106,  176, 179,  245,  330,  413, 
419 
Youngblood  v.  Norton,  1  Strobh. 

Eq.  122  595,  610 

Yosemite  Stage,  etc.,  Co.  v.  Dunn, 

83  Cal.  264  54 

Yosti  V.  Laugh  ran,  40  Mo.  594       451 
Yundt's  Appeal,  13  Pa.  St.  575 

596,  010 

Zimmerman  v.  Streeper,  75  Pa. 

St.  147  ;   S.  C.  5  Leg.  Gaz. 

126  66 

Zinn  V.  Lnw,  32  W.  A'a.  447  52 

Zirkel  v.  .Toilet  Opei-a  House  Co., 

79  111.  334  366 

Zeiter  r.  Zeiter,  4  AVatts,  212  536 


INDEX. 

The  References  are  to  the  Pag^es. 


ABANDONMENT, 

donee  may  abandon  gift,  397. 

ACCEPTANCE, 

agent  making  for  donee,  70. 

demand  of  donee  of  donor's  administrator  for  delivery  of  gift,  140, 

note  2. 
deposit,  310. 
disclaimer,  effect,  74. 
donatio  mortis  causa,  70. 
effect  on  title,  228. 
essential,  64,  68. 
evidence  of,  73. 
infant's,  70,  72, 

presumed,  70,  72, 143,  note  4. 
must  be  intelligently  accepted,  69. 
presumption  as  to,  2,  71,  225,  314. 
ratifying  agent's  acceptance,  70. 
revocation  of  acceptance  made,  69. 
stock,  347. 

subscription  to  public  enterprise,  276,  279. 
terms  of  gift,  73. 

third  person  may  accept  for  donee,  69,  70. 
when  not  made,  68. 

not  presumed,  72. 

unneces.«(ary,  70. 

ACCOUNTS, 

advancement,  use  of  to  .show,  581. 
bank  account,  257,  note  3. 
cancellation  on  account-book,  132,  note  2. 
gift  of,  131,  206,  247. 

ACQUIESCENCE, 

effect  on  revoking  gift,  96. 
may  amount  to  assent,  10. 

ACTS  OF  PARTIES, 

may  show  a  gift,  190,  192,  note  2. 

667 


668  Index. 

The  References  are  to  the  Pages. 

ADEMPTION, 

definition,  513. 

distinguished  from  an  advancement,  501. 
ADMINISTRATOR, 

advancement,  has  no  control  over,  613. 

cannot  perfect  gift  by  delivering  to  donee,  143. 

collecting  amount  of  note  given,  227,  note  4, 251. 

donatio  mortis  causa  does  not  receive,  23. 

donee  may  be,  55. 

gift,  presumption  arising  from  possession  by,  224,  note  2. 

has  no  control  over  donatio  viortis  causa,  45. 

possession  of  gift,  not  entitled  to,  227. 
ADMISSIONS, 

donee's  concerning  advancement,  580. 

donor's  concerning  gift,  204. 

ADVANCEMENTS, 

account-books  as  evidence  of,  581. 
ademption  is  not,  513. 

distinguished  from,  501. 
admissions  concerning,  580. 
advances  defined,  511. 

adverse  possession  of  gift,  effect,  552,  notes,  566,  613. 
agreement  of  donees  concerning,  575,  note  2,  604. 
amount  of  donor's  estate  considered,  594. 
annuity,  562. 

assent  of  donee  to  advancement,  518. 
bond  of  donee,  forgiving,  564. 
burden  to  overthrow  presumption  of,  596. 
changing  to  debt,  517. 

to  gift,  517. 
changing  gift  to  advancement,  516. 
child  already  provided  for,  553. 
conduct  of  parties,  580. 

confusion  in  use  of  the  terms  ademption  and  advancement,  501. 
consideration  for  deed,  recitals  concerning,  552. 
contingent  interest,  562. 

conveyance  in  fraud  of  creditors,  annulling,  552,  note, 
custom  of  London  and  York,  504,  506,  note  3. 
daughter,  gift  to,  569. 
day-book  as  evidence  of,  561,  581. 
debt  of  child,  changing  to  advancement,  517. 

paid  by  parent,  563. 

gift  of  parent  to  pay,  559,  note  1. 

distinguished  from  an  advancement,  513. 
declarations  cannot  control  statute  requiring  advancement  to  be  in 
writing,  521,  note  2. 

contemporaneous,  575. 


Index.  669 

The  References  are  to  the  Pages. 

ADVA  NCEMENTS.— CoTi^mued. 

other  gifts,  580. 

prior,  576. 

rationale  concerning,  578. 

subsequent,  576  to  578. 
deed,  parol  evidence  to  show  consideration  of,  588. 
definition,  510. 

double  portions,  rule  against,  509. 
dying  declarations  to  prove,  577,  note  3. 
education  of  child  may  be,  559,  561. 
English  statute,  text,  616. 

history  of,  503. 

common  law  in  America,  507. 
equality  the  rule  of  508,  575,  595. 
as  declared  by  will  of  donor,  594,  note  1. 
estate  of  donor,  is  no  part  of,  613. 
family  book  as  evidence,  561,  582. 
"  father's  estate  "  construed,  536. 
furniture,  561,  582. 
gift,  advancement  is  not,  11. 

cannot  change  to  advancement,  84, 582,  note  3, 

an  advancement  must  be,  513. 

must  be  of  donor's  own  property,  532. 

to  stranger,  532. 
grandchildren,  522, 526. 
history  of,  501,  506,  note  3. 
horse,  561. 
hotchpot,  applies  to  all  distributees,  602. 

doctrine  of,  598. 

donee  not  compelled  to  account  for,  602. 

improvements,  611. 

infant  accounting  under,  602. 

interest,  609. 

meaning,  598. 

property  applicable  to,  600,  604. 

refusal  of  donee  to  come  in,  right  on  second  distribution,  605. 

rents  and  profits,  611. 

slaves,  612. 

title,  effect  on,  612. 

value  of  property,  605,  607,  608. 

wasting  or  destroying  property,  612. 

widow,  applies  to,  601. 
husband's  gift  to  wife,  570. 
idiot,  purchase  for— presumption,  550,  note, 
illegitimate  son— purchase  in  name  of,  554. 
inadequacy  of  price,  553. 
inadvertent  act,  574. 


670  Index. 

The  Beferences  are  to  the  Pages. 

ADVANCEMENTS.— CoH^irawed 
infant — ^gift  to,  553. 
innocent  purchaser,  543. 
insolvency  of  ancestor,  553,  note  6. 
intention  of  donor  controls,  519,  573. 

statute  controls,  520. 
interest,  charging  an  advancement,  609. 

forgiving  on  debt,  517,  note  3. 

payment — effect  on  presumption,  564,  note  2,  582,  note  3. 
intestacy  of  donor,  534,  535. 
in  writing — parol  evidence  to  vary,  592. 
jury,  question  for,  596. 
kinship  of  donor  and  donee,  522. 
life  estate,  554. 
litigation  concerning,  614. 
loan,  575,  note  1. 
memorandum  of  advancement,  581. 

parol  evidence  to  vary,  583. 

required  by  statute,  585  to  587. 

subsequent  to  gift  made,  518,  note  1. 
mother's  gift  to  child,  531,  568. 
note  not  to  be  paid,  593,  note  2. 

given  by  parent,  568. 

by  child  to  parent,  563,  564. 
origin  of  property  given,  595,  note  1. 
part  gift  and  part  advancement,  553,  note  2. 
partition,  614. 

perfected  in  lifetime  of  donor — must  be,  533. 
portion — gift  must  be  by  way  of  portion,  556. 
possession  retained  by  parent,  554. 
power  to  advance— effect,  694,  note  1. 
presumption— contract  of  father  for  purchase  in  child'B  name,  550. 

conveyance  or  gift  by  father  to  child,  550. 

purchased  in  name  of  child,  547. 

of  stranger,  545. 
property  applicable  to,  538. 
purchase  by  child  with  parents'  money,  566. 

by  grandparent  for  grandchild,  569. 

by  parent  for  child,  567,  568. 

rebutting,  591. 

in  joint  names  of  donor  or  donee,  555. 
real  estate  as  an  advancement  when  gift  is  void,  533. 
rebutting  presumption  of  advancement,  591. 

sufficiency  of,  592,  note, 
receipt  for  debt,  564. 
relationship  to  show  advancement,  583. 
release  by  heir  of  prospective  interest,  540. 


Index.  071 

The  References  are  to  the  Pages. 

ADVANCEMENTS— a.7i<mwed 

rents  and  profits  of  real  estate,  533. 

retained  by  parent,  554. 
retroactive  statute,  540,  note  7. 
reversionary  interest,  554. 
revocation,  515. 
Roman  law  concerning,  505. 
eatisfaction,  differs  from,  514. 
sealed  bill,  568. 

setting  up  in  business,  557, 558,  559,  note  1. 
small  sums,  561. 

son-in-law  receiving  property  for  his  wife,  526. 
statute  controlling  intention  of  donor,  520. 

regarding  evidence,  565,  note  2,  585. 
regulations  of  must  be  complied  with,  517,  note  2. 
statute  of  limitations,  effect,  613. 
successive  lives,  523,  note  1. 
surrounding  facts,  594. 
taxes  paid  by  father,  555,  note  2. 
trifling  sums,  561. 
trust,  when  arises,  545,  547. 
used  interchangeable  with  gifts,  2. 
value,  how  estimated,  551,  605. 

effect  on  presumption  of  advancement,  594. 
void  gift  as  an  advancement,  537,  note  1. 
watch,  561. 

widow's  gift,  531,  569,  note  2. 
will  executed  after  advancement,  536. 

declaring  what  shall  be  taken  as  an  advancement,  593. 

used  as  evidence  of  advancement,  566,  note,  583. 
witnesses,  competency  of,  615. 

ADVANCES, 

definition,  511. 
ADVERSE  POSSESSION, 

effect  upon  advancement,  552,  note,  566. 

gift  of  property  so  held  is  void,  166. 

gives  title  to  real  estate,  389, 392,  note  1,  395. 

AFFECTION.    See  Proof  of  Gift. 

AGE, 

donor's,  215,  444. 

AGENT, 

accepting  gift  for  principal,  70. 

declarations  by,  202,  note  5. 

delivery  to,  119, 139. 

direction  to  deliver  to  douee,  152,  note  2. 

donee  estopped,  when,  80. 


672  Index. 

The  References  are  to  the  Pages. 

A  GENT.— Continued. 

gift  to  by  principal,  451. 

order  to  deliver  to  donee,  174. 

possession  by  agent  of  donor,  132. 

residing  with  donor,  delivery  to,  166,  note, 

revocation  of  authority  to  deliver,  144. 
ANIMALS.    SeeCoLTB. 

branding  a3  evidence  of  delivery,  158. 

cow  on  farm,  164. 

delivery  by  parent  to  child,  161. 

increase  of,  valid  as  gift,  66. 

reservation  of  right  to  use,  182. 

ANNUITY, 

may  be  an  advancement,  562. 

ASSENT, 

husband's  assent  to  wife's  gift,  51. 

ofgift  to  wife,  53. 
necessary  to  constitute  transaction  a  gift,  10. 

assign:\ient, 

deposit  certificate  when  unassignable,  307,  note  3. 
insurance  policy,  248,  note  3. 
not  necessary,  238,  239,  242. 
statute  requiring,  249. 

ATTOENEY, 

gift  to  by  client,  441,  450, 453,  456,  note  1. 

AVERSION, 

donor's  for  donee,  65. 

BAILMENT, 

delivery — ^to  render  gift  valid,  124. 

order  to  bailee  to  deliver  to  donee,  145,  note  2. 

shown  to  rebut  gift,  219. 

BANK.    See  Deposit  ;  SA^^NGS  Bank. 

delivery  of  bank-book  essential,  105,  note  2. 
gift  of  bank-book  as  gift  of  deposit,  312,  317. 
notes  of  as  a  gift,  238,  note. 

BARTER, 

not  a  gift,  7. 
BASTARD.    See  Illegitimate  Child. 

BILLS  OF  EXCHANGE.    See  Checks;   Chose  in  Action  ;  Notes. 
checks  are  not,  289. 
gift  of,  243. 

BOAT, 

delivery,  125. 


Index.  673 

The  References  are  to  the  Pages. 
BONDS, 

delivery  of  registered  bonds,  168. 

destroying  in  order  to  cancel — a  gift,  129,  note  1. 

gift  of,  4,  note  1,  233. 

reservation  of  interest  accruing  on,  178,  180,  note  2. 

retention  of  M-ithout  cancelling,  127,  note  3. 

statute  requiring  assignment  to  transfer,  249. 
BONUS, 

used  in  statute — construed,  2,  note  4. 
BOOK  ACCOUNT, 

gift  of,  247,  257,  note  3. 
BORROWING, 

right  to  "  borrow  "  gift,  184,  note  3. 
BOUNTY, 

is  a  gift,  2. 

soldiers  during  War  of  Rebellion,  59. 

BOX, 

delivery  of  contents  of,  120, 140,  note  2. 

gift  of  contents  of,  146. 
.  BRANDING, 

cattle  branded  on  making  gift  of,  158. 
BURDEN  OF  PROOF.    See  Pkesumptions. 

advancement — rebutting  presumption  of,  596. 

death  from  existing  disorder,  28. 

donee  has  to  show  a  gift,  189. 

fraud  and  undue  influence,  449. 

gift  of  real  estate,  400. 

husband  has  on  gift  from  his  wife,  52,  note  4. 

loan  or  gift,  7,  8. 

redelivery,  effect — donee  must  show,  185. 

rents  of  wife's  land  received  by  husband,  211. 

reservation  of  use,  99. 
CANCELLATION, 

evidence  of  cancellation  of  use  to  show  a  gift  of  it,  260. 

CARRIAGE, 

What  was  a  sufficient  delivery  to  child,  165. 

CHARITY, 

subscription  to,  273. 

CHECK, 

acceptance  not  required,  291. 
bills  of  exchange  are  not  checks,  289. 
bona  fide  holders,  297. 
defined,  288. 

donatio  mortis  causa — not  valid  as,  301. 
donor's  as  gift,  245,  292,  293. 
43 


674  hidex. 

The  References  are  to  the  Pages. 

CHECK.— Con^mwd. 

effect  of  giving,  250. 

exchange  for  stranger's  check,  305. 

gift  of,  where  not  vaUd,  245,  292, 293. 

no  intention  to  give  proceeds  of  check,  305. 

payment  of  prevented  by  drawee  until  after  donor's  death,  294. 

spelling  of,  291,  note  2. 

stranger's  as  gift,  304. 

third  person's  as  a  gift,  296. 
CHILD, 

what  is  a  sufficient  delivery  to  hy  parent,  157. 
CHOSE  IN  ACTION.    See  Bili^  of  Exchange  ;  Bonds  ;  Checks  ;  Notes. 

all  unassigned  instruments  may  be  made  gifts,  242. 

bill  of  exchange,  243. 

book  account,  247. 

debt  forgiven,  259. 

defined,  232. 

draft,  243. 

Duffield  V.  Elwes,  236. 

early  cases,  233. 

expectancy,  252. 

insurance  policy,  248. 

mortgage,  243. 

non-transferrable  instruments,  247. 

question  settled,  238. 

receipt,  247,  262. 

Snellgrove  v.  Bailey,  235. 

unassigned  notes,  238. 

American  cases,  239,  242. 
CHURCH, 

subscription  to,  273,  281. 
CIRCUMSTANCES, 

gift  shown  by,  206. 
CIVIL  LAW, 

revocation,  100. 
CLERGYMAN, 

gift  to  by  sick  person,  456. 
CLIENT, 

gift  by  him  to  his  attorney,  441,  450, 453,  456,  note  1. 

CLOCK, 

delivery,  case  of,  115. 

CLOTHES, 

gift  to  child,  159,  note  2. 
CODE  NAPOLEON, 

revocation  of  a  gift  under,  101. 


Index.  675 

The  Beferences  are  to  the  Pages. 

COLLEGE, 

subscription  to,  273. 

COLTS.    See  Animals. 

delivery,  165,  note  2. 

by  father  to  child,  161. 

where  donor  and  donee  reside  on  same  farm,  117, 133,  note  3. 

CONDITIONAL  GIFT, 

acceptance,  73. 

condition  against  alienation,  81,  note  2. 

promise,  281. 

to  pay  part  to  third  person,  77,  78. 
covenant  to  give  on  a  contingency,  434. 
donatio  mortis  causa,  79. 

implied,  37,  80. 

may  be  on  a  contingency,  37. 
estoppel,  80. 

gift  over  if  donee  die  without  heirs,  78. 
marriage,  80. 
performance  necessary,  80. 

purchaser  of  donee  must  perform,  80. 

vendor's  gift  a  contract,  75. 
reservation  of  right  to  use,  77. 
return  if  donor  desire  it,  181. 
revocation,  93. 
void,  when  is,  75. 
waiver  of  condition,  81. 

CONDUCT  OF  PARTIES, 

use  as  evidence,  190,  192,  note  2.  • 

CONFIDENTAL  RELATIONS, 
eflfect  of  on  gift,  450. 

CONSIDERATION, 
blood  as,  5,  371. 
conditional,  281. 
deed  of  gift,  174. 

parol  evidence  to  show,  588. 
failure  of  not  a  question,  3. 
love  and  aflfection,  4. 
nominal  or  disproportionate,  4. 
none  required,  3. 
note,  253. 

recitation  of  in  deed,  372. 
relationship,  5,  371. 
trust,  439. 

CONTINGENT  INTEREST, 

may  be  an  advancement,  562. 


676  Index. 

The  Keferences  are  to  tbe  Pages. 

CONTRACT, 

gift  may  be,  376,  note,  382,  383. 

changing  to  contract,  82,  83. 

performance  of  condition  in  gift  renders  it  a  contract,  75.  \^ 

power  to  sell  not  convertible  into  power  to  give,  83.  ,? 

when  gift  is  a  contract,  4,  73. 
CONTRIBUTION, 

donee  of  donatio  mortis  causa — when  must  contribute,  45. 
CONVERSION, 

donee  of  imperfect  gift  may  sue  person  converting  gift  to  his  own  use, 
186. 

gift  of  property  by  a  donor  having  no  title  is  a  conversion,  47. 

CORPORATION.    See  Stock. 

donee,  a  corporation  may  be,  58. 
fraudulent  subscriptions  to  the  stock,  365. 
gift  to  its  officer  by  corporation,  56,  note  7,  57. 
power  to  make  and  receive,  56. 
stock,  directors  cannot  give  away,  366. 

COUPONS, 

government  bonds,  347,  note, 
reservation  of  for  donor's  use,  178. 

CREDITOR, 

attacking  gift,  220,  note  1. 

gifts  void  as  to,  468,  469. 

may  recover  on  trustee  process,  46,  note  2. 

revoking  gift  of  donor,  cannot,  89. 

validity  of  gift  when  creditors  are  not  concerned,  227. 

CROPS, 

delivery,  115,  167. 

presumption  of  gift  of  to  child,  216. 

DAY-BOOK, 

use  as  evidence  of  gift,  561. 

as  evidence  of  advancement,  581. 
DEAD  PERSON, 

cannot  be  a  donee,  55. 

DEATH, 

apprehension  of  necessary  to  validity  of  donatio  mortis  causa,  24,  27. 

belief  of  donor  as  to,  25-31,  31,  note  3. 

dead  person  cannot  be  a  donee,  55. 

deliverj^  must  be  before  death  of  donor,  107,  note. 

by  trustee  after  donor's  death,  145. 

to  third  person  to  retain  until  donor  is  dead,  141,  note  2. 
donee  dying  before  donor,  43. 
existing  disorder  must  occasion  death,  28. 
gift  to  take  effect  after  death  of  donor,  66. 


Index.  677 

The  B«ferences  are  to  the  Pages. 

jyEAHB..— Continued. 

interval  between  gift  and  death  of  donor,  35. 

need  not  come  immediately  after  gift  made,  21,  note  6. 

revoking,  94. 

subscriber's,  279. 

surgical  operation  causing  death,  29. 
DEBT, 

changing  to  advancement,  517. 

delivery,  109. 

by  surety  to  principal,  169. 

differs  from  an  advancement,  513. 

discharging,  259,  260. 

donatio  mortis  causa  subject  to,  41,  note  2,  46. 

failure  to  cancel  and  no  delivery,  127,  note  3. 

forgiving  is  a  gift,  259,  262. 
delivery,  127. 

gift  of  a  part,  129,  262,  note  4. 

indorsement  on  note,  128. 

intention  not  to  enforce  is  not  a  gift,  109. 

payment  by  parent  of  child's  debt  is  an  advancement,  563,  564. 

receipt  for  is  a  gift,  127,  262. 

DECLARATIONS, 

admissions  of  donor,  204. 

agent's,  202,  note  5. 

advancements,  contemporaneous,  575,  579. 

prior,  576. 

subsequent,  576-578. 

rationale  of,  578. 
casual  not  sufficient  to  show  gift,  132,  note  2. 
conclusions  from  facts  does  not  show  a  gift,  360. 
deed  of  donor  to  show  gift,  201. 
delivery  shown  by,  187,  note  1,  202. 

not  sufficient  to  show,  121,  203. 
donee's,  202. 

donor's  at  time  of  gift,  197. 
drunken  man's,  201. 
dying  not  admissible,  577,  note  3. 

incapacity  of  donor  to  make  gift  shown  by,  444,  note  2. 
insufficient  to  show  gift,  121,  203. 
intent  of  donor  shown  by,  62,  65. 
other  gifts,  204,  580. 
prior,  196. 

real  estate,  parol  gift,  404. 
rebutting  presumption  by,  214. 
subsequent,  198,  200,  369,  note  2. 

when  gift  doubtful,  200. 
trusts,  422,  note  2,  424. 
writing  creating  trusts,  contradicting  by  parol  evidence,  413,  note  2. 


o78  Index. 

The  References  are  to  the  Pai^ee. 

DEED.    See  Real  Estate. 
cancelling,  93. 
considei-ation  for,  174. 

stated  in  deed  may  be  rebutted,  4,  588. 
"  deed  of  gift  of  ancestor  "  defined,  372,  note  3. 
delivery  in  donatio  mortis  causa,  36. 

at  recorder's  office,  173. 
destruction,  effect  on  proof  of  gift,  175. 
dispense.s  with  delivery  of  gift,  170. 
executed  on  donor's   death-bed  does  not  render  it  a  donatio  mortis 

causa,  38. 
extent  of  gift,  170,  note  4. 
future  gift  made  by,  67. 
gift  by,  256. 

for  life  with  remainder  over,  void,  182,  note  2. 
love  a  sufficient  consideration  for,  5,  371. 
recitation  in  of  consideration,  372,  552. 
reforming,  370. 

registering  sufficient  to  show  a  delivery,  140,  note  2. 
restoring  lost  deed  of  gift,  370. 
reversionary  interest  in  land,  172. 
revocation  of  gift  made  by,  86,  note  3. 
slave  given  by,  171,  note  2. 
stock,  357. 

undivided  part  of  property,  131,  note  2,  175. 
valid  as  a  donatio  mortis  causa,  36. 
void  deed  not  a  gift,  372. 

to  show  a  delivery,  201. 
voluntary  assignment  by,  256. 
will  cannot  be  a  deed,  36. 

DEFINITIONS, 

Bracton'a,  17. 
donatio  mortis  causa,  20. 
Homer's,  19,  note  1. 
inter  vivos,  1,  2. 
Justinian's,  18. 
Swinburne's,  19. 

DELIVERY.    See  Redelivery  ;   Repossession. 
account  owed  by  donee  to  donor,  131. 
actual,  114. 

not  necessary,  116. 
administrator  or  executor  cannot  complete,  143. 
adverse  possession  held  by  third  person,  166. 
agent  ordered  to  deliver  gift  to  donee,  174. 

of  donor  receiving,  141. 

revoking  authority  to  make,  142. 


Index.  679 

Xlie  References  are  to  the  Pages> 

DELIVERY .— Cordinued. 

remaining  in  possession,  132. 

of  donee  receiving,  119, 139. 

residing  with  donor,  166,  note, 
ambiguous,  122. 

arbitrary  enforcement  of  rule  concerning,  120. 
bailee  ordered  to  deliver  to  donee,  145. 
bailment,  124. 

bank-book  of  a  savings  bank,  126. 
barge,  125. 

Baron  Pollock's  decision  on,  123. 
box  and  contents,  120,  146. 
branding  animals,  158. 
carriage  given  to  daughter,  160,  note,  165. 
certifieate  of  deposit,  306. 
check,  292. 

civil  law  did  not  require,  105. 
clock,  115. 

colts  on  farm,  117,  note  1, 133,  note  3,  161,  165,  note  2. 
comments  upon  presumption  arising  from  delivery  by  parent  to  bis 

child,  220. 
condition  of  donor  must  be  considered,  120. 
conditional,  117. 

conduct  of  donor  may  show  a  delivery,  107,  note, 
constructive  delivery,  116,  note  1. 
conversion  by  wrong-doer,  action  by  donee,  186. 
cow  on  farm,  133,  note  3. 
croi^s,  115,  167. 
debt,  109. 

forgiving,  127. 

forgiving  a  part,  129. 
declarations  may  show,  187,  note  1,  202. 

not  sufficient,  106,  note,  121. 
deed  in  case  of  a  trust,  425. 

destroyed,  175. 

insufficient  to  show  a  delivery,  173. 

must  be,  370. 

sufficient  to  show  a  delivery,  170. 
definition  of,  104. 
deposit  in  joint  names  of  donor  and  donee,  156. 

book  must  be,  105,  note  2. 

certificate  must  be.  111,  note  2, 112. 

donor  receiving  interest  on,  180,  note  2. 
destruction  of  bond  in  order  to  make  a  gift  of  it  to  obligor,  126,  note  1. 
distinction  between  gift  and  testamentary  gift,  105. 
dominion  of  relinquishing,  110, 116,  note  1. 
donatio  mortis  causa,  strict  delivery  required,  127. 


GSO  Index. 

The  References  are  to  tbe  Pages. 

DELIVERY.— Conimued. 

before  death  of  donor,  107,  note, 
deed  to  show  a  dehvery,  173. 
donee  in  possession  at  time  of  gift,  125, 127,  note  2. 
donor  and  donee  residing  together,  125. 
each  case  rests  on  its  own  circumstances,  104. 
escrow,  revocation,  93. 
essential  to  validity  of  gift,  105, 109,  note  2. 
form,  property  status  upon,  133. 
furniture  in  house,  112, 141. 
future  delivery  is  void,  66, 110,  note  5, 118. 

donor  believing  future  act  is  necessary,  121. 
by  trustee,  144,  145. 
gift  not  present  when  made,  132. 
guardian,  159. 
gun,  118. 

horse  retained  by  husband  in  his  own  stable,  154. 
husband  to  wife,  154. 
impossible  to  make,  129. 
income  of  a  mill,  167. 

indorsement  of  part  payment  on  note,  128,  262. 
infant,  141,  note,  157, 159. 

instances  of  imperfect  delivery  of  father  to  child,  160. 
intention  of  donor  must  be  considered,  120. 
cannot  take  place  of  a  delivery,  109. 
when  must  accompany  delivery,  126,  note  2. 
interest  on  note,  forgiving,  129,  note  1,  130. 
jury,  delivery  a  question  for,  186. 
Kent's  mistake  as  to  a  symbolical  delivery,  167,  note  2. 
key  to  box,  111. 

for  a  gift  of  chest  or  drawer,  133, 138, 139,  note  1. 
to  third  person,  140,  note  2. 
lottery  ticket,  163. 
manual,  114. 

not  necessary,  114,  117,  note  1. 
members  of  family,  148, 166,  note, 
money  represented  by  a  note,  168. 
mortgage  to  be  cancelled  when  donor  dies,  120. 
name  of  donee  placed  on  gift,  163. 
note,  255. 

payable  to  husband  and  wife,  266. 
parent  to  child,  157,  164. 
part  of  article  given,  130,  138. 
part  of  note  given,  244. 
piano,  107,  113,  150,  note  1,  158,  note  1. 
possession,  parting  with  by  donor,  111. 
by  donee  not  sufficient,  111. 


Index.  681 

The  References  are  to  the  Pages. 

DELIVEEY.— Coji/mwed. 

by  donee  must  be  continuous,  when,  144,  note  5. 

showing  does  not  show  a  deUvery,  118,  note  4,  127,  note  2. 
presumption  as  to,  107,  note,  147. 
production  of  note,  effect,  257. 
promise  without  deliverj-,  insufficient,  259. 
proof,  how  made,  186. 
purchase  by  child  with  proceeds  of  gift,  162. 

by  father  for  child,  162. 

by  husband  for  wife,  152. 

for  donee,  152. 
reason  for  rule  requiring  a  delivery,  106, 108,  note  1. 
receipt  for  debt,  127, 128,  note  1, 131, 174. 
recording  deed,  140,  note  2,  173. 
re-deUvery  of  deed  of  trust,  426. 

of  note,  255. 
registered  bonds,  168. 
remainder,  172. 

repossession  of  gift  by  donor,  144,  182,  265. 
reservation  of  interest  in  gift,  176,  178, 180. 

of  right  to  use  gift,  182. 
return  of  gift  if  donor  desires  it,  181. 

rule  requiring  a  delivery  the  same  in  both  kinds  of  gifts,  104. 
savings  bank  deposit-book,  320. 
shifting  gift  from  one  draM'er  to  another,  168. 
silver  buried  in  ground,  117,  note  1. 

situation  of  the  subject-matter  of  the  gift  must  be  considered,  116. 
slav-^es,  164,  174. 
shght  delivery,  122. 
stock  shares,  169,  180,  note  2. 
surety  to  principal  of  debt,  169. 
symbolical  delivery,  114,  167. 
test,  109. 
third  person  receiving  gift  for  the  donee,  139. 

to  retarin  until  donor's  death,  141,  note  2. 
time  of  delivery,  118. 
title  must  pass,  109,  114. 
transfer  of  money  into  name  of  donor  and  his  wife,  266. 

of  stock,  360. 
trusts,  426. 

undivided  interest  given  by  deed,  175. 
unknown  to  donee,  124. 
unsealed  instrument,  171. 
use  of  gift  reserved,  176,  178. 
user  distinguished  from  possession,  112. 
verdict,  when  court  may  direct,  187. 
wearing  apparel,  159,  note  2. 


682  Index. 

The  Beferences  are  to  the  Pages. 

D'ELIY'ERY  .—Continued. 

weighty  articles,  116,  117. 

when  may  be  dispensed  with,  125. 

writing  may  serve  as  a  delivery,  119,  note  1. 

on  note  does  not  dispense  with,  246. 

on  articles  given  not  sufficient  for  a  delivery,  175. 

on  slate,  120. 
DEPOSIT.    See  Bank  ;  Savings  Bank. 
acceptance,  310. 

presumed,  314. 
bank-book  does  not  pass  deposit,  312. 
certificate,  306. 

transfer  of,  329. 
control  over  by  donor,  310,  333. 
delivery.  111,  note  2, 112,  308. 

by  husband  to  wife,  150. 
deposit  in  joint  names  of  donor  and  donee,  156,  326. 
gift  of  book  not  gift  of  fund,  323. 
indorsement  limiting  power  of  donee  to  draw,  307. 
interest  reserved  on,  323. 
knowledge  of  donee  concerning,  310. 
money  deposited  in  name  of  donee,  308. 
presumption  of  deposit  in  donee's  name,  330. 
re-delivery  of  deposit-book,  325. 
reservation  of  a  part,  176, 178. 

of  income,  180,  note  2. 
revocation,  308,  338. 
savings  bank  deposit,  126. 
special  deposit,  329. 

in  particular  drawer  of  bank,  138. 
trust  raised  by,  331. 
wife's  money,  312. 
DEPOSITORY, 

retaining  gift  until  after  donee's  death,  146,  note  2. 

DEPOSIT-BOOK, 

delivery  necessary,  105,  note  2. 
DISCLAIMER  OF  GIFT, 

efiect,  74. 

how  made,  74. 

trustees  making,  74. 
DIVORCE, 

effect  on  gift  by  husband  to  wife,  213. 
DOMINION, 

control  over  stock  retained  by  donor,  363. 

parting  with,  116,  note  1. 

relinquishing,  110,  142. 


I 


Index.  68^ 

The  References  are  to  the  Fages> 

DONATIO  MORTIS  CAUSA, 
acceptance  essential,  70. 
administrator  cannot  control,  23,  45. 
amount  of  gift,  entire  estate,  39. 

bank  deposit  drawing  and  donor  afterward  recovering,  307,  note  2. 
Bracton's  definition,  17. 
check  invalid  as,  301. 

of  stranger,  304. 
conditional  may  be,  37,  79. 
contribution  by  donee  to  legatees,  45. 
criterion,  31. 

death — given  in  view  of,  17,  18. 
debts  subject  to,  23,  46. 
deed  as  is  valid,  36. 
defined,  20. 

delivery  the  same  as  in  inter  vivos,  104, 105,  note  1. 
deposit  certificate  may  be,  307,  note  3. 
distinction  between  and  inter  vivos,  23. 
donee  dying  before  donor,  42. 
earliest  case,  13, 15. 
executor  has  no  control  over,  23, 45. 
existing  disorder — death  from,  28. 

burden  to  show,  28. 
going  on  journey,  32. 
Homer's  recitation  of,  19,  note  1. 
hostility  of  courts  to,  15,  16. 
how  like  inter  vivos,  1. 
husband  to  wife  in  Bracton's  time,  18. 
"in  case  of  death,"  31. 
in  extremis — use  of  in  old  authorities,  28. 

donor  need  not  be,  26. 
in  peril  of  death,  27. 

inter  vivos  may  be  even  when  made  during  last  Illness,  38. 
Justinian's  definition,  18. 
last  sickness,  24. 
legacy,  compared  with,  19,  20. 

resembles,  22. 
mutual  gifts,  neither  donor  nor  donee  surviving  the  others,  18. 
necessary  attributes  of,  21. 
note,  234. 
old  age,  33. 
origin,  13,  14, 15. 

possession  must  be  given  at  once,  111. 
posthumous,  does  it  work  a  revocation  of  gift,  41. 
real  estate,  373. 

recovery  of  donor,  41,  307,  note  2,  364. 
redelivery  to  donor — effect,  185. 


G84  Index. 

The  References  are  to  the  Pages. 

DONATIO  MORTIS  CAUSA.— Confmited. 
revocation,  41,  98. 

donor  may,  43. 

by  will,  43. 
soldier's  gift  on  going  to  war,  33. 
stock,  348,  note  1. 

recovery  from  sickness  by  donor,  364. 
suflSciency  of  pi-oof  to  show,  193. 
suicide,  32. 

surgical  operation,  32. 
Swineburne's  definition,  19. 
time  of  delivery,  118. 

between  gift  and  death,  21,  note  6, 35. 
title,  when  passes,  44,  228. 
trust  raised  by,  36. 
unassigned  notes,  239,  242. 
when  can  be  made,  24,  25. 
wills  act  does  not  effect,  24. 
will  insufficiently  executed  cannot  be,  38. 

DONEE, 

administrator  may  be,  55. 
agent  accepting  gift,  70. 
child  encientee,  55,  272,  note  1. 
class  of  persons  may  be,  226. 
corporation  may  be,  56. 
creditor  of  estate,  efl'ect,  46. 
dead  person  cannot  be ,  55. 
death  of,  before  donor,  effect,  42. 
executor  may  be,  55. 
foreigner  may  be,  53. 
gift  unknown  to  until  death  of  donor,  310. 
husband  receiving  gift  from  his  wife,  51. 
illegitimate  child,  55. 
infant,  48. 

mistress  of  donor,  55. 
municipal  corporation  may  be,  59. 
must  be  clearly  designated,  47. 
officer  of  corporation,  57. 
one  or  more  donees  incapable  of  taking,  55. 
residing  with  donor,  delivery,  125. 
slave  cannot  be,  54. 
title  of  donor,  cannot  deny,  227. 
wife  from  her  husband,  49. 
as  to  third  persons,  53. 

DONO  DARE, 

meaning  of,  19,  note  1. 


Index.  685 

The  References  are  to  the  Pages. 

DONOR, 

admissions  against  interest,  197,  note  3. 

age,  444. 

belief  of  donor  that  further  act  was  necessary  to  complete  gift,  121. 

condition  of  must  be  considered,  120. 

corporation  as,  56. 

of  its  own  stock,  365,  366. 
disease  of,  444. 
husband  to  wife,  49. 
infant,  48. 

of  real  estate,  400. 
legislature,  54. 
lunatic,  54. 

married  woman  as  to  real  estate,  400. 
municipal  corporation,  58. 
temper  of,  444. 
wife  to  husband,  51. 
DRAFT, 

gift  of,  243. 

acceptance  before  donor's  death,  244. 

DRUNKEN  MAN, 

gift  by,  460. 
DUE  BILL, 

cancelling  as  a  gift  to  debtor,  260. 

EARNINGS, 

gift  to  minor  by  father,  49. 

husband  giving  wife  her  earnings,  50,  212. 

EASEMENT, 

may  be  a  gift,  373. 
EDUCATION, 

cost  of  as  an  advancement,  559,  561. 

EJECTMENT, 

improvements  erected  on  land,  when  a  defense  to,  176,  note. 

parol  gift  of  lands,  407. 
EQUALITY, 

unequal  distribution,  595. 

will  fixing,  594,  note  1. 
EQUITY, 

aiding  imperfect  gift,  225. 

ESCROW, 

deed  delivered  as  revocation,  93. 

ESTOPPEL, 

acquiescence,  320. 

conditional  gift,  donee  cannot  deny  condition,  80. 

deed  may  estop  donor,  171. 


686  Index. 

The  References  are  to  the  Pages. 

ESTOPPEL.— Continued. 

denying  gift,  91. 

heir  after  ratifying  gift,  91,  note  2. 

trust,  431. 

when  donor  is  estopped  to  claim  a  return  of  gift,  61. 
EVIDENCE.     See  Presumptions  ;  Proof  of  Gift. 

acceptance,  73. 

EXECUTOR, 

cannot  perfect  gift,  143. 

collecting  amount  of  gift,  251. 

donatio  mortis  causa  does  not  take,  23. 

donee  may  be,  55. 

has  no  control  over  gift,  45. 

possession  of  gift,  not  entitled  to,  227. 

EXISTING  DISORDER, 

death  must  result  from,  28. 
burden  to  show,  28. 

EXPECTANCY, 

gift  of,  252. 
FAILURE  OF  CONSIDERATION, 

not  a  question  in  an  action  concerning  a  gift,  3. 

FAMILY, 

delivery  by  parent  to  child,  157, 164. 

gift  between  members  of  family,  148, 166,  note. 

presumption  as  to  gift,  152,  note. 

FAMILY  BOOK, 

use  in  evidence,  561. 
FARM.    See  Colts. 

animals  on,  165,  note  2. 

delivery  of  property  on,  133,  164. 

FATHER, 

delivery  by  to  child,  157. 

FATHER-IN-LAW, 

advancement  to  son-in-law  for  daughter,  526. 

FOAL, 

when  a  gift,  7. 

FOREIGNERS, 

may  be  a  donee,  53. 

FORGIVING  DEBT.    See  Account. 

gift  of  part,  delivery,  129. 
FRAUD  AND  UNDUE  INFLUENCE, 

age  of  donor,  444. 

amount  necessary  to  avoid  gift,  442. 

ante-nuptial  gift,  458. 


Index.  687 


The  References  are  to  the  Pages. 

FRAUD  AND  UNDUE  INFLUENCE.— Cbn^mMed. 

attorney,  441,  450,  453,  456,  note  1. 

avoids  gift,  441. 

brother  to  sister,  459. 

burden  to  show,  449. 

child  to  parent,  459,  460. 

client,  441. 

clergyman,  456. 

confidential  relations,  441,  450. 

deed  prepared  by  donee,  446. 

disease  of  donor,  444. 

gift  intended  to  operate  as  a  will,  447. 

guardian,  441,  450. 

importuning  donor  for  gift,  448. 

improvident  gift  to  stranger,  445. 

inebriate,  460. 

marriage  gift,  458. 

mental  weakness,  443. 

mistake,  447. 

mistress,  460. 

parent  to  child,  459. 

partners,  451. 

persuasion,  448. 

physician,  457. 

power  to  revoke  not  reserved,  448. 

principal  and  agent,  451. 

revocation,  93. 

sister  to  brother,  459. 

subsequent  creditors,  469,  470. 

suit  to  annul,  464. 

temper  and  disposition  of  donor,  444. 

trustee,  450. 

unequal  distribution  of  property,  446. 

unsoundness  of  mind,  443. 

value  of  gift,  445. 

ward's  gift  to  guardian,  441,  460. 

wife  to  husband,  462. 

witness  to  gift,  448. 
FRAUDULENT  CONVEYANCE, 

donatio  mortis  causa,  473. 

donee  liable  to  donor's  creditor,  474. 

donor  retaining  control  of  gift,  470. 

exemption  from  execution,  472. 

father  may  give  child  its  services,  472. 

fraud  on  wife  or  child,  474. 

fraudulent  purposes,  467. 

gift  to  debtor's  son  by  stranger,  474. 


688  Index. 

The  References  are  to  the  Pages. 

FRAUDULENT  CONVEYANCE.— Conimwed. 

valid  between  donor  and  donee,  473. 

husband  may  give  his  services  to  his  wife,  472. 

indebtedness  of  grantor,  468. 

insignificant  gift,  472. 

intent  to  defraud  subsequent  creditors,  470. 

statutes  concerning,  466,  467. 

subsequent  creditoi-s,  471. 

sudden  insolvency,  469. 
FRENCH  LAW.    See  Code  Napoleon. 

revocation,  100. 
FUNERAL  EXPENSES, 

check  to  pay,  269. 
FURNITURE.     See  Piano. 

advancement  may,  582. 

delivery,  112,  141,  148,  150,  note  1. 

gift  or  advancement,  561. 

purchase  by  wife  with  husband's  money,  214,  note  2. 

son's  gift  to  father,  210,  note  1, 

what  was  a  valid  gift  of,  191,  note  6. 
FUTURE  GIFT, 

belief  of  donor  that  Something  further  was  necessary  ix>  perfect  gift, 
121. 

trustee  delivering,  144, 145. 

void,  66, 110,  note  5. 
GENEVA  AWARD, 

not  a  gift,  2,  note  5. 
GIFT, 

advancement  is  a  gift,  11,  513. 
changing  to  gift,  517. 
gift  changed  to  advancement,  84. 

changing  to  advancement,  516,  517. 
to  contract,  82. 
to  trust,  83. 

contract  changed  to  gift,  82. 

distinguished  from  sale,  6. 

evidence  concerning,  190. 

"  in  case  of  death,"  31. 

indefinite,  must  not  be,  11. 

lex  loci  controls,  12,  52. 

loan  is  not,  7. 

part  of  an  article,  delivery,  130. 
by  deed,  131,  note  2. 

property  not  owned  by  donor,  66. 

sale,  when,  6. 

sealed  up  when  given,  124. 


Index.  689 

The  References  are  to  the  Pages. 

GIYT.—Cmdinued. 

to  a  class  of  individuals,  226. 

uncertain  as  to  part ;  whole  void,  12. 

unknown  to  donee,  310. 
GRAND  ARMY  OF  THE  REPUBLIC, 

subscription  to  encampment  meeting,  279,  note  2. 
GRANDCHILDREN, 

advancement  to,  522. 

only  grandchildren  surviving  grandparent,  526. 
GRANDPARENT, 

advancement  by,  569. 
GRATUITOUS  GIFT, 

defined,  2,  note  4. 
GUARDIAN, 

delivery  to,  159. 

gift  to  by  ward,  441,  460. 
GUN, 

delivery,  118. 

HEIR, 

innocent  purchaser  of  his  expectancy,  543. 
ratifying  incompleted  gift,  89,  note  3,  91,  note  2. 
release  by  of  expectancy  in  ancestor's  estate,  540. 
HOMER, 

description  of  a  donatio  mortis  causa,  19,  note  1. 

HORSE.    See  Animals  ;  Colts. 

delivery  by  husband  to  wife,  149, 154. 
gift  as  an  advancement,  561. 
gift  of  interest  in,  delivery,  130. 

by  deed,  131,  note  2. 
husband  retaining  in  his  stable,  154. 

HOSTILITY, 

courts  once  hostile  to  donatio  mortis  causa,  15,  16. 

HOTCHPOT.    See  Advancement. 

HUSBAND, 

articles  in  his  residence  presumed  to  be  in  his  possession,  125. 

assents  to  gift  to  wife,  53. 

delivery  to  wife,  148, 154. 

deposit  in  joint  names  of  himself  and  wife,  320. 

gift  of  his  services  to  his  wife,  472. 

may  make  a  gift  to  his  wife,  49. 

effect,  49,  note  3. 
possession  of  gift  to  wife  of  real  estate  taken  by  him,  395. 
proof  of  gift  by  to  wife,  211. 
purchase  of  gift  for  wife,  delivery,  152. 
44 


690  Index. 

The  References  are  to  the  Pages. 

HUSBAND— Co'rtimued. 

retention  of  money-gift  to  husband  by  wife,  184,  note  3. 
stock  given  to  wife,  347,  note. 

placed  in  his  own  and  wife's  name,  356. 
trustee  for  wife,  312. 
wife's  gift  to,  51. 

of  real  estate,  369. 

IDIOT, 

purchase  in  name  of,  presumption,  550,  note. 
ILLEGITIMATE  CHILD.    See  Bastard. 

may  be  a  donee  of  its  father,  55. 

purchase  in  name  of,  554. 
ILLNESS.    See  Donatio  Mortis  Causa  ;  Sickness. 

gift  made  during  may  be  an  inter  vivos,  38. 

recovery  from,  eifect,  41. 
IMMORAL  GIFT, 

revoking,  95. 
IMPERFECT  GIFT, 

aiding,  225. 

statute  of  limitations  rendering  valid,  226. 

IMPORTUNING  DONOR, 

does  not  render  gift  void,  448. 
IMPROVEMENTS.     See  Advancements  ;  Real  Estate. 

advancement,  charging  as,  611. 
"  IN  CASE  OF  DEATH," 

validity  of  gift  when  so  made,  31. 

INDEFINITE, 

gift  must  not  be,  3, 11. 

INDORSEMENT, 

donor  not  liable  on,  251. 

IN  EXTREIMIS, 

donor  need  not  be,  26. 

use  of  in  old  authorities,  28. 

INFANT, 

acceptance  by  of  gift,  72. 
advancement  to,  553. 
delivery  to,  159. 

by  parent,  157. 

of  note,  141,  note. 

of  colt  on  father's  farm,  161. 
donee  may  be,  48. 
donor  cannot  be,  48. 
earnings  as  a  gift  by  father,  49. 
gift  to  of  real  estate,  377,  note. 


Index.  691 

The  References  are  to  the  Pages. 

INFANT—  Cmtinued. 

hotchpot,  not  applicable  to,  when,  602. 

promises  to  make  a  gift  to,  64,  note  6. 

purchase  for  by  a  parent,  162. 

ratifying  agent's  acceptance,  70. 

real  estate  cannot  give  away,  400. 

revoking  gift,  may,  86,  87,  note  2,  89,  436,  note  3. 
INNOCENT  PURCHASER, 

heir  selling  his  expectancy  to,  543. 
IN  PERIL  OF  DEATH, 

use  of  term  with  reference  to  a  gift,  27. 
I  O  U, 

subject  of  a  gift,  243. 
INSANITY, 

avoids  gift,  54. 

presumption  as  to  donor's,  225. 
INSURANCE, 

advancement,  policy  may  be,  539. 

gift  of  policy,  150,  note  1,  184,  note  3,  248. 
delivery,  171,  note  2. 
INTENTION  OF  DONOR.    See  Promise. 

advancement,  effect  on,  519,  573. 
essential,  519. 

concealed  by  donor,  64,  217,  note  2, 

declarations  of  as  res  gestse,  62. 

deliver}^  does  not  constitute,  109. 

when  must  accompany,  126,  note  2. 

desire  to  make  gift  not  alone  .sufficient,  254. 

donor  cannot  be  asked  what  his  intention  was  in  making  purchase  in 
wife's  name,  213. 

doubtful,  avoids  gift,  62,  note  4. 

essential  to  validity  of  gift,  61. 

expressing  in  writing  not  alone  sufficient,  67. 

expressions  of  as  evidence,  62. 

intent  not  enough,  63. 

look  may  show,  63. 

must  be  clearly  shown,  65, 205. 

promise  not  sufficient,  64. 

proof  of,  65,  205. 

relationship  of  donor  to  donee  to  show,  65. 

secretly  entertained  by  donor,  64. 

to  only  make  a  loan,  217,  note  2. 

subsequent  to  delivery,  62. 

trust,  to  create  not  sufficient,  421. 

writing  on  gift  may  show,  176, 178,  180. 
not  clearly  disclosing,  421,  note  1. 


692  Index. 

The  References  are  to  the  Pages. 

INTEREST, 

advancement,  charging  on,  609. 

distinguished  from,  513. 

gift  by  parent  to  pay,  559,  note  1. 
payment,  how  it  affects  presumption,  564,  589,  note  3. 
donee  hable  for — when,  109,  note, 
forgiving  ia  an  advancement,  517,  note  3. 
gift  of  to  maker  of  note,  129,  note  1. 
reservation  of,  177, 178. 

on  deposit  made,  323. 
INTOXICATING  LIQUOR, 

gift  or  sale,  7. 
mTER  VIVOS, 
defined,  1. 

delivery  the  same  as  in  donatio  mortis  causa,  104,  105,  note  1. 
distinction  between  and  donatio  mortis  causa,  23. 
essentials  of  a  valid  gift,  2. 
future  gift  void,  66. 
how  like  donatio  m,ortis  causa,  1. 
illness,  gift  if  made  during,  24,  38. 
revocation,  85. 

IN  VENTRE  SA  MERE     See  Enceinte. 
donee  may  not  be,  55. 

JOURNEY, 

going  on,  32. 

JUDGMENT, 

lien  on  lands  given  to  donee,  50,  note  3,  406. 
note  merged  in,  249. 

JURY, 

advancement  a  question  for,  562,  note  5,  596. 

delivery  a  question  for,  186. 

equivocal  language,  question  for,  231. 

loan  or  gift  is  a  question  for,  7,  9,  217,  note  2. 

question  for,  231. 

trial  by  in  action  concerning  parol  gift  of  land,  407. 

when  court  may  direct  verdict,  187. 

KENT, 

mistake  as  to  symbolical  delivery,  167,  note  2. 

KEY, 

bank  deposit  key,  delivery,  138. 

delivery,  111. 

for  contents  of  box  or  drawer,  129, 133. 

to  third  person,  140,  note  2. 
donee  already  in  possession  at  time  of  gift,  134,  note  1. 


Index.  693 

The  References  &re  to  the  Pages. 

KINSHIP.    See  Relationship. 

donor  to  donee  to  show  intention  of  donor,  65,  522. 
KNOWLEDGE, 

donee  not  having  of  gift,  310. 
LABOR.    See  Services. 

performing  on  land  given  by  parol,  379. 
LAWSON  V.  LAWSON, 

comments  on,  299. 

gift  of  note,  269. 
LEGACY, 

resemblance  to  gift,  19,  20,  22. 
LEGACY  DUTY, 

gift  made  to  avoid,  250. 
LEGISLATION.     See  State. 

may  be  a  donor,  54. 
LEND, 

defined  as  used  in  a  will,  9,  note  3. 
LEX  LOCI, 

determines  validity  of  gift,  189,  12. 

wife's  gift  to  husband,  52. 
LIFE  TENANT, 

possession  of  is  not  adverse  to  remainderman,  177,  note  1. 
LOAN, 

advancement  is  not,  575. 

changed  to  gift,  when  not,  9,  note  3. 

evidence  evenly  balanced  between  gift  and  loan,  194,  note. 

misunderstanding  of  donor  and  donee,  9. 

not  a  gift,  7. 

presumption  as  to,  222,  261. 

question  for  jury,  7. 

secret  intention  to  not  make  a  gift,  217,  note  2. 

when  usurious,  65,  note  4. 
LOTTERY  TICKET, 

gift  of  by  father  to  child,  163. 
LOVE.    See  Affection. 

donor  for  donee  may  be  shown,  65. 

LUNATIC.     See  Insanity. 

cannot  be  a  donor,  54. 
MARRIAGE, 

gift  to  child  on  marriage,  215. 

to  donee  on  condition  he  marry,  80. 

return  of  presents  on  marriage  broken  ofi",  94. 
MARRIAGE  (GIFT  IN  FRAUD  OF), 

acquiescence  of  husband,  491. 


694  Index. 

The  Keferences  are  to  the  Pages. 

MARRIAGE  (GIFT  IN  FRAUD  Oli).— Continued. 

action  to  set  aside  transfers,  492,  493,  495. 

actual  fraud,  481. 

concealment,  481. 

confirmation,  491,  note  3. 

considemtion  for  conveyance,  incumbrance,  or  debt,  489. 

conveyance  before  treaty  of  marriage  entered  upon,  482-486. 

decree,  493. 

early  case,  475. 

engagement  before  conveyance,  485,  486. 

fraudulent  representations  by  wife,  486. 

general  rule,  478. 

husband  secretly  conveying  his  property,  494. 

ignorance  of  husband  of  conveyance,  482. 
of  property  owned  by  wife,  487. 

incumbering  land,  487. 

innocent  purchaser,  490. 

knowledge  of  husband  of  fraud,  482. 

laches  in  bringing  action,  491. 

leases  by  wife,  487. 

married  woman's  statute,  496. 

misrepresentations  by  husband,  491. 

pecuniary  means  of  husband,  488. 

personal  property  of  husband,  496. 

property  need  not  have  brought  about  the  marriage,  487. 

reasons  for  rule,  482. 

release  of  debt  or  legacy,  488. 

seduction  of  wife,  490. 

widow  with  children  setthng  property  on  them,  488. 

wife  may  sue,  495. 
MARRIAGE  SETTLEMENT, 

a  trust,  440. 
MARRIED  WOMEN.    See  Husband  and  Wife. 

real  estate,  cannot  give  away,  400. 
MEMORANDUM, 

gift  by  means  of,  246. 

MEXICAN  LAW, 

revoking  gift  under,  99. 

MILL, 

delivery  of  income  of  mill,  167. 

MINE, 

gift  of  claim  to,  404,  note  3. 
MINOR.    See  Infant. 

MISCONDUCT, 

wife's  does  not  revoke  settlement,  213. 


Index.  695 

The  References  are  to  the  Pages. 

MISTAKE, 

avoids  gift,  447. 

equity  will  correct,  213,  note  4. 

revoking  gift  made  under  mistake,  95. 

MISTRESS, 

as  donee,  55,  460. 

illicit  relations  to  donor  may  be  shown,  209. 
MISUNDERSTANDING, 

loan  or  gift,  9. 
MONEY, 

in  possession  of  donee  at  time  of  gift,  246. 

MORTGAGE, 

cancellation  after  mortgagee's  death,  120. 
donor's  to  donee  as  a  gift,  272. 
foreclosure,  177,  note  1. 
gift  of  a  part,  delivery,  129. 

of  note  secured  carries  mortgage,  243. 

of  mortgage  without  note,  129,  243. 

MUNICIPAL  CORPORATION, 

donee  may  be,  59. 
donor  cannot  be,  58. 

NAME, 

right  to  give  to  child  the  subject  of  contract,  4. 
writing  donee's  on  gift,  163. 

NOTE.    See  Bills  of  Exchange  ;  Checks  ;  Choses  in  Action. 
administrator  collecting,  227,  note  4. 
advancement,  note  of  donor  is  not,  568. 

when  presumed  child's  is  not,  563,  564. 
bank  notes  subject  of  gift,  238,  note, 
cancelling  maker's  note  as  a  gift  to  him,  128,  261. 
consideration  for  note  given,  253. 
delivery  essential,  255. 

re-delivery,  255. 
donor  collecting  after  gift  made,  141,  note, 
donor's  payable  to  donee,  270,  267. 
enjoining  collection  of,  132. 
equalizing  distribution  of  estate,  250. 
indorsement,  donor  not  liable  on,  251. 
indorsed  to  donee,  presumption,  224,  note  1. 
intention  to  make  a  gift  of  not  sufficient,  254. 
interest  due  on,  gift  to  maker,  129,  note  1,  130. 
i.  o.  u.,  243. 

Lawson  v.  Lawson,  269. 

memorandum  on  note  does  not  dispense  with  a  deliver}',  246. 
merged  in  judgment,  249. 


696  Index. 

The  References  are  to  the  Pages. 

l!iOT^.— Continued. 

money  represented  by,  168. 

mortgage  goes  with  gift  of  note,  243. 

non-transferable  note,  247. 

part  of  note  as  a  gift,  244,  262,  note  4. 

payable  to  third  persons,  264. 
to  order  of  payee,  234. 
to  husband  and  wife,  266. 

payment,  to  whom  made,  251. 

possession,  when  evidence  of  delivery,  127,  note  2,  257. 

receipt  for  and  in  place  of  a  delivery  of,  247. 

redelivery  to  donor,  effect,  184. 

repossession  by  donee,  265. 

sealed,  242. 

survivor  of  two  payees,  266. 

unassigned,  238. 

wife  to  husband  as  a  donatio  mortis  causa,  186. 
NOTICE, 

trust,  331. 
OFFICER, 

gift  to  by  corporation,  57. 
OLD  AGE, 

gift  by  reason  of,  validity,  33. 
OPERA  BOX, 

when  not  valid  as  a  gift,  362. 
ORDER, 

trust  created  by,  432. 
PARAPHERNALIA, 

gift  by  husband  to  wife,  50. 
PART, 

gift  must  be  of  the  whole,  3, 130, 138,  244. 

PARENT, 

comments    on    presumption   arising   from    delivery  of  property  to 

child,  220. 
delivery  by  to  child,  157. 
possession  by  for  child,  159. 
proof  of  gift  to  child,  215. 

PARTNER, 

gift  to  by  copartner,  451. 

PARTITION, 

advancement  determined  in  action  for,  614. 

PASS-BOOK, 

delivery,  168. 

entries  in  in  name  of  donee,  398. 


Index.  697 

The  References  are  to  the  Pages. 
PAYMENT, 

presumption  as  to,  225. 
PENSION, 

is  a  gift,  2. 

revocation,  86. 
PERIL  OF  DEATH, 

use  of  term,  27. 
PERSONAL  ORNAMENTS, 

wife's,  152,  note  2. 
PERVERSION, 

does  not  avoid  gift,  445. 
PHYSICIAN, 

gift  to  by  patient,  457. 
PIANO.    See  Furniture. 

delivery,  75,  107,  note,  113, 150,  note  1,  158,  note  1. 
PIN  MONEY, 

gift  of  by  husband  to  wife,  50. 
PLEADING, 

sufficiency,  2.31. 
POLLOCK,  BARON, 

decision  respecting  sufficiency  of  delivery,  123. 
POPE. 

gift  by  the  poet  Pope,  15,  note  7. 

POSSESSION.    See  Delivery. 

must  be  clear  in  gift  of  real  estate,  394. 

when  donee  may  maintain  action  against  trespassers,  371. 

POWER  OF  ATTORNEY, 
gift  of  stock  by,  357. 

PRESUMPTION.    See  Proof. 
acceptance,  225. 

by  adult,  71. 

by  infant,  143,  note  4. 

of  deposit,  314. 

when  not  presumed,  72. 
advancement  or  gift,  550. 

purchase  for  child,  547,  550,  note. 

for  stranger,  545. 
comments  upon   presumption  arising  from  delivery  of  property  to 

child  by  parent,  220. 
conveyance  to  wife,  212,  note  2. 
declarations  accompanied  by  gift,  190. 
delivery,  107,  note, 
deposit  in  donee's  name,  330. 
donee's  access  to  donor's  papers,  224. 


698  Index. 

The  References  are  to  the  Pages. 

PRESUMPTION.— Con<i?iwd. 

head  of  family  purchasing  gift,  152,  note  2. 

husband's  gift  to  wife,  211,  414. 

ill-treatment  of  wife  by  husband,  210. 

joint  possession  of  two  or  more,  223,  note  2.  11 

loan  or  gift,  222,  261. 

marriage  of  child,  215. 

parent's  gift  to  child,  215,  222. 

payment  of  debt,  225. 

possession  of  gift  by  donee,  effect,  223,  224,  note  1. 
where  husband  and  wife  reside  together,  125. 

proof  of  delivery  to  third  person,  147. 

purchase  for  wife  by  husband,  212,  213. 

rebutting  by  declarations  of  donor,  214,  219. 

relationship  of  donor  and  donee,  7, 8. 

rents  of  wife's  property,  gift  to  husband,  210. 

sanity  of  donor,  225. 

slave  given  to  married  child,  216. 

wife  to  husband,  209,  210. 
PRINCIPAL  AND  SURETY, 

surety  forgiving  debt  paid  for  principal,  169. 
PROBATE, 

not  necessary  to  validity  of  donatio  mortis  causa,  45. 
PROMISE.    See  Intention. 

condition,  281. 

debt  to  forgive,  259. 

devise  of  gift  to  donee  renders  valid,  65. 

heir  promising  donor  to  deliver  to  donee,  132. 

mortgage  of  donor  as  a  gift,  272. 

note  of  donor  payable  to  donee,  267,  270. 

real  estate,  380. 

subscriptions,  273,  283. 

to  make  a  gift  not  enough,  64. 

trust,  to  create,  not  sufficient,  421. 

PROMISSORY  NOTE.    See  Note. 

PROOF.    See  Acceptance  ;  Advancements  ;  Declarations  ;  Intention  ;  Pke- 

SUMPTIONS. 

acceptance,  225. 

acts  and  conduct  of  donor  and  donee,  190,  206,  405. 

admissions,  197,  note  3,  204. 

advancement,  213. 

affection  of  donor  for  donee,  208,  215. 

age  of  donor,  207,  215. 

amount  of  gift,  208,  note  2,  220. 

"  beyond  suspicion,"  194. 

burden,  189. 


Index.  699 

The  Keferences  are  to  the  Pages. 

VROOY. —Cominued. 

circumstances,  205,  206. 
condition  of  donor,  207. 
declarations  of  agent,  202,  note  5. 

of  donee,  202. 

of  donor,  190. 

contemporary,  197. 
prior,  196. 
subsequent,  198,  200. 

insufficient  to  show  gift,  203. 

of  drunken  man,  201. 

in  void  deed,  201. 

by  husband  purchasing  gift  for  wife,  213. 

to  show  a  deliver}',  202. 

sho-ndng  other  gifts,  204. 
delivery,  how  shown,  186. 
donee's  access  to  donor's  papers,  224. 
equivocal  language,  question  for  jury,  231. 
estate  of  donor,  207. 
illicit  relations  of  donor  and  donee,  209. 
imperfect  gift,  defendant  may  show,  226. 
intent  of  donor,  205. 
language  of  gift,  191. 
lex  loci  controls,  189. 
loan  or  gift,  194,  note, 
marriage  of  child,  215. 
neighborhood  reports,  204. 
number  of  witnesses,  195. 
other  gifts,  217,  note  2. 
parent's  gift  to  child,  215. 
parol  gift  of  real  estate,  411. 
particularity  of  proof,  192. 
payment,  presumption  as  to,  225. 

possession,  effect  on  presumption,  219,  223,  224,  note  1. 
presumption  of  gift  by  husband  to  wife,  214. 

by  wife  to  husband,  210. 
proof  to  show  donee,  226. 
purchase  by  donor  for  donee,  207,  note  1. 
reference  in  will  to  gift,  202. 
relationship  of  donor  and  donee,  209. 
res  gestse,  197. 
sanity  of  donor,  225. 

statements  of  donor  in  pleadings  of  another  action,  199,  note, 
statute  of  limitations  rendering  gift  valid,  226. 
sufficiency,  193. 
title  when  passes,  228. 
trust,  338. 


700  Index. 

The  References  are  to  the  Pages. 

VROO¥. —Cominued 

unsigned  order  of  donor,  205. 

validity,  when  donor's  creditors  may  contest,  227. 

value  may  be  shown,  207. 

of  donor's  remaining  estate,  220. 
witnesses,  competency  of,  230. 
words  of  gift,  191. 

PURCHASE, 

by  father  for  child,  162. 

husband  for  wife,  152. 
what  is  a  delivery  of  property  purchased,  152, 154,  note. 

RATIFICATION, 

heirs  may  ratify  void  gift,  89,  note  3,  91,  note  2. 

REAL  ESTATE,    See  Specific  Performance  ;  Trust. 
abandonment  by  donee,  397. 
action  for  possession,  371,  407. 
acts  and  conduct  of  donor  and  donee,  405. 
adverse  possession,  389,  395. 
burden  on  donee  to  show  gift,  400. 
compensation  in  damages,  when  allowed,  408. 
confirming  gift  by  will,  393. 

contract  to  make  expenditure  on  land  given,  379. 
control  retained  by  donor,  380. 
declarations  to  prove,  404. 

"  deed  of  gift  from  ancestor  "  defined,  372,  note  3. 
definite,  gift  must  be,  400. 
delivery  of  deed,  370. 
description  of  land  given,  401. 
donatio  mortis  causa,  373. 
donee  changing  his  situation,  383,  385. 

erecting  improvements  is  a  purchaser  for  value,  366,  note, 
donor  becoming  trustee  for  donee,  415. 
easement,  373. 
ejectment,  407. 

defense  to,  376,  note. 
French  custom,  proof  of  to  show  gift,  405,  note  3. 
gift  in  writing  of,  when  enforced,  371. 
husband's  gift  to  wife,  369. 
improvements,  374. 

destroyed,  356,  note  3. 

donee  must  show  he  made,  404. 

failure  to  make,  388. 

made  before  gift,  387. 

must  rely  on  gift  when  made,  387. 

slight  or  trivial,  385,  386,  note  1. 

when  donee  must  make,  388. 


Index.  701 

The  Keferences  are  to  the  Pages. 

REAL  ESTATE.— Con/inti^d. 

when  donee  may  recover  cost  of,  410. 
incumbrance  on  land  given,  398,  406. 
infant's  gift  of  is  void,  400. 

gift  to,  377,  note. 
Intention  to  give  not  enough,  395. 
joint  tenants,  389,  note  3. 
judgment  against  donee  is  a  lien  on  land,  406. 
jury  tries  title  of  donee  to,  407. 
labor  performed  on  land,  379. 
married  woman's  gift,  400. 
mining  claim,  404,  note  3. 
mutual  mistake,  373. 
parol  gift  of  generally  void,  374. 

trust,  373. 
possession  by  donee  necessary,  378,  395. 

by  husband  for  his  wife,  395. 

must  be  clear,  394. 

retained  by  donor,  396. 
promise  to  give  not  sufficient,  380. 

purchase  by  donor  and  conveyance  to  donee  by  vendor,  368. 
purchase-money  mortgage,  368. 
recitation  in  deed  of  consideration,  372. 
relationship  of  donor  and  donee,  399. 
rents  a  full  compensation,  effect,  385. 
received  by  donor,  398. 
revocation,  97. 

of  donatio  mortis  catisa,  373. 
rights  of  donee's  creditors,  407. 
specific  performance,  when  enforced,  368. 
statute  of  limitations,  389,  392,  note  1. 
suflBciency  of  evidence,  401. 
taxes  paid  by  donor,  398, 399. 
timber,  373. 
title  when  it  passes  to  donee,  406. 

acquired  by  donor  after  gift  made,  394. 
trespassers  to  land  given,  407. 
void  deed  does  not  make  a  gift  of  land,  372. 
wife's  gift  to  her  husband,  369. 
will,  383. 
RECEIPT, 

account,  gift  by  means  of,  131. 

gift  by  means  of,  247,  262. 
sufficient  to  show  gift  of,  debt,  127. 

to  show  a  delivery,  174. 
REDELIVERY.    See  Delivery  ;  Repossession. 
burden  to  show  effect  of,  185. 


702  Index. 

The  References  are  to  the  Pages. 

REDELIVERY.— Owrii/iMetZ. 

deposit-book  to  savings  bank,  325. 

donatio  mortis  causa,  185. 

effect,  182. 

revocation  of  gift  does  not  make,  97. 

when  may  be  made,  119. 

wife  of  donor  placing  gift  in  husband's  desk,  152,  note  2. 
REFORMATION, 

deed,  370. 
RELATIONSHIP.     See  Kinship. 

donor  and  donee,  227,  399,  522. 

sufficient  for  consideration  for  deed,  5. 
REMAINDERMAN, 

donor  reserving  interest  in  or  use  of  gift,  176. 

gift  by  deed  for,  172. 

parol  gift  to  donee  for  life  with  remainder  over,  182. 

RENTS, 

advancement,  may  be,  533. 
charging  as,  611. 
donor  retaining  rents,  554. 

gift  of  rents  of  wife's  land  to  husband,  210. 

parol  gift  of  lands,  rents  a  full  compensation  to  donee,  385. 
REPOSSESSION.    See  Delivery  ;  Redelivery. 

donatio  mortis  causa,  effect,  185. 

donor  regaining,  effect,  182,  144. 

wife  of  donor  placing  gift  in  husband's  desk,  152,  note  2. 
RESERVATION, 

rent  reserved  by  donor,  398. 

right  to  revoke  gift,  92. 

trust,  control  over,  434. 

use  of  gift,  77. 

RES  GEST^, 

declarations  at  time  of  gift  are,  197. 
REVERSIONARY  INTEREST, 

assignment  of  valid,  253,  note  1. 

REVOCATION, 

acceptance  not  yet  made,  69. 

acquiescence  of  donor,  96. 

advancement  cannot  be  revoked,  515. 

agent's  authority  to  deliver  gift,  144. 

birth  of  child,  effect,  41, 100. 

burden  to  show,  99. 

cancelling  deed  of  donatio  mortis  causa,  93. 

change  of  position  by  donee  in  view  of  gift,  96. 

civil-law  rule  as  to,  100. 


Index.  703 


The  References  are  to  the  Pages. 

REVOCATION.— Cojiimued. 
conditional  gift,  93. 
creditors  of  donor  cannot,  89. 
deed  cannot  be  revoked,  86,  note  3. 
delivery  in  escrov.-,  93. 
deposit,  308,  338. 

disability  of  donor  may  revoke  gift,  86. 
donatio  mortis  causa,  43,  98,  119. 

by  ^-ill,  43. 
donor  cannot  revoke,  85. 
estoppel  to  deny  gift,  91. 
failure  to  reserve  power  to  revoke  gift,  448. 
father's  gift  to  child,  160,  note, 
fraud  and  undue  influence,  93. 
French  law,  100. 
gift  by  father  to  child,  163. 

'  for  benefit  of  third  person,  90. 
grantee's  name  in  deed  changed,  87,  note  5. 
immoral  gift,  95. 
incomplete  gift,  87. 
infants,  87,  89,  436,  note  3. 
parol  gift  of  real  estate,  97. 
pension,  86. 

power  to  make  a  deliver^'  may  be  revoked,  142. 
recovering  from  sickness,  41. 
re-delivery,  97. 
re-possession  by  donor,  144. 
reserving  power  to  revoke  gift  of  stock,  362. 
revocation  by  death,  94. 

of  right  to  make,  92. 
Roman  law,  101. 
Spanish  and  Mexican  law,  99. 
subscription  to  public  enterprise,  279. 
trust,  91,  331,  338,  436. 
unintended  gift,  95. 
voluntary  settlement,  87. 
wedding  presents,  94. 

RIGHT  OF  WAY. 

subject  of  a  gift,  373. 

ROBBERS. 

donatio  mortis  causa  in  view  of  possible  robbery,  18. 

ROMAN  LAW.    See  Advancement. 
effect  of  on  title  to  gift,  44. 
Justinian's  definition,  44. 

SAILOR, 

donatio  mortis  causa  in  Bracton's  day,  17. 


704  Index. 

The  Keferences  are  to  the  Pages. 

SALE, 

gift  or  sale,  162. 

imperfect  gift  made  perfect  by  sale  and  receipt  of  funds,  163. 

may  be  claimed  as  a  gift  by  donee,  10. 

not  a  gift,  6. 
SATISFACTION, 

differs  from  an  advancement,  514. 
SAVINGS  BANK.    See  Deposit. 

acceptance  presumed,  314. 

by-laws  regarding  transfer  of  deposit,  324. 

delivery  of  book,  126,  320. 

deposit  made  in  name  of  donee,  314. 

in  joint  names  of  donor  and  donee,  326. 

English  rule,  323. 

gift  of  deposit-book  not  a  gift  of  the  fund,  317,  323. 

interest  reserved  on  deposit,  323. 

Massachusetts  cases,  343. 

redelivery  of  deposit-book,  325. 

reservation  by  donor  of  interest  on  deposit,  180,  note  2. 

special  deposit,  329. 

trust,  320,  note  2,  338. 

SEAL, 

delivery  of  gift  made  by  unsealed  instrument,  171. 
when  deed  of  gift  must  be  under,  431. 

SEALED  NOTE.    See  Notes. 

advancement  may  be,  568. 

SEPARATE  ESTATE, 

wife  may  give  away,  52. 

SERVICES.  See  Fraudulent  Conveyances. 
father  may  give  child  his  services,  472, 
liusband  may  give  his  own  to  his  wife,  472. 

SETTLEMENT, 

imperfect  gift  is  not,  129,  note  1. 

proof  of  for  wife,  213. 

revocation,  87. 

trusts,  440. 

when  not  a  gift,  2,  note  5. 

SICKNESS.     See  Donatio  Mortis  Causa. 
essential  to  donatio  mortis  caasa,  24. 
inter  vivos  during,  38. 
recovery  from,  effect,  41. 
surgical  operation,  32. 

SILVER, 

burial  in  field,  delivery,  117,  note  1. 


Index.  705 

The  References  are  to  the  Pages. 

SLATE, 

writing  words  of  gift  upon,  120. 
SLAVE, 

advancement  of,  emancipation,  612. 
cannot  be  donee,  54. 
deed  for,  171,  note  2, 174. 
delivery  of,  what  sufficient,  160, 161,  note, 
gift  to  child  at  its  marriage,  7,  8, 164. 
parol  gift  of  in  Virginia,  106,  note, 
presumption  of  gift  to  married  child,  216. 
reservation  of  right  to  use,  182. 

SOLDIER'S  BOUNTY, 

validity  of  law  authorizing,  59. 

SOLDIER'S  GIFT, 

donatio  mortis  causa  in  Bracton's  time,  17. 
gift  on  going  to  war,  33. 

SON-IN-LAW, 

advancement  to  for  wife,  378,  526. 

gift  to  by  father-in-law,  217,  note  2,  378. 
SPANISH  LAW, 

revoking  gift  under,  99. 
SPECIFIC  PERF0R:MANCE.    See  Real  Estate  ;  Tkusts. 

family  settlements,  382,  note  2. 

imperfect  gift,  225,  370. 

lost  deed  restored,  370. 

parol  gift  of  land,  377,  note. 

reforming  deed,  370. 

when  enforced,  368. 

STATUTE  OF  DISTRIBUTIONS, 
common  law  in  America,  507. 
origin,  503. 
text,  616. 

STATUTE  OF  LIMITATIONS.    See  Adveese  Possession. 
hotchpot,  effect  on,  613. 

invalid  gift  rendered  valid  by,  226,  389,  392,  note  1. 
when  not  apphcable,  9. 

STOCK.    See  Corporation. 
acceptance,  347. 
American  cases,  347,  350. 
apportioning  dividends,  365. 
assignment,  352. 
certificate,  effect  of,  346. 
control  by  donee,  362. 

retained  by  donor,  363. 
45 


706  Index. 

The  References  are  to  the  Pag^es. 

^TOCK.— Continued. 

conveyance  of  real  estate  of  corporation  to  stockholders,  350. 

corporation  may  receive  its  own  as  a  gift,  366. 

delivery,  169. 

directors  cannot  give  away,  366. 

donatio  mortis  causa,  348,  note  1. 

English  cases,  351. 

failure  to  transfer  on  books,  347. 

fraudulent  subscriptions  to,  365. 

gift  to  subscriber  to  secure  influence,  365. 
by  power  of  attorney  or  deed,  357. 

husband  to  wife,  347,  note. 

opera  box,  362. 

purchase  with  notice  of  assignment,  364. 

receipt  of  profits  by  donee,  362. 

recovery  of  donor  from  sickness,  364. 

release,  357. 

reservation  of  income,  180. 

of  power  to  revoke,  362. 

subscribing  for  in  name  of  donee,  352. 

survivorship  when  stock  in  two  names,  355. 

transfer,  350,  351. 

on  books  but  failure  to  deliver  certificate  of,  360. 
trusts,  350,  417,  note. 
STOCKHOLDERS, 

right  to  restrain  corporation  making  a  gift  of  its  property,  56. 

subscription  to  corporation,  278. 
STRANGER, 

gift  to,  445. 
SUBSCRIPTION  TO  PUBLIC  ENTERPRISE, 

acceptance,  276,  279. 

charity,  273. 

church,  273. 

college,  273. 

death  of  subscriber,  279. 

revocation,  279. 

single  subscriber,  283. 

stockholders,  278. 

Sunday,  28. 

who  may  sue  on,  280. 
SUICIDE, 

validity  of  donatio  mortis  causa,  32. 
SUNDAY, 

subscriptions  made  on,  281. 
SUPPORT, 

conveyance  on  condition  of  receiving  is  not  a  gift,  22. 


Index.  707 

The  References  are  to  the  Pages. 

SURETY.    See  PRiNaPAL  axd  Surety. 

father  paying  money  for  child,  6. 
SURGICAL  OPERATION, 

donatio  morrtis  causa,  29,  32. 
SURVIVOR.    See  Deposits  ;  Stock  ;  Trusts. 

deposit  in  joint  names  of  donor  and  donee,  326,  355. 
SWINEBURNE, 

definition  of  donatio  mortis  causa,  19. 
SYMBOL, 

delivery  for  growing  crop,  167. 

Kent's  error  as  to  sufiiciency  of  delivery  by  symbol,  167,  note  2. 

sufficient  to  show  a  delivery,  114. 
TALLY, 

gift  as  a  mortis  causa,  14. 
TAXES, 

payment  by  donor  of  real  estate,  398,  399. 
TIMBER, 

gift,  373. 
TIME, 

delivery,  when  made,  118. 

interval  between  gift  and  death,  27,  note  2,  35. 
TITLE, 

denying  donor's,  donee  cannot,  227. 

delivery  must  pass  title,  109,  114. 

donor  without,  there  is  no  gift,  192,  note  2. 

hotchpot,  effect  on  property  given,  612. 

real  estate,  when  donee  acquires  to,  44,  228,  406. 

trusts,  424,  427,  429. 

when  passes,  44,  228,  406. 
TRAVELER, 

donatio  mortis  causa  in  Bracton's  time,  17. 

TRESPASS, 

parol  gift  of  lands,  407. 

TRIAL, 

jury,  231. 
pleading,  231. 

TRUSTS.    See  SpsaFic  Performance. 

assignment  as  a  declaration  of  trust,  423. 

certain,  must  be,  421. 

completed  by  donor,  must  be,  413. 

when  is,  424. 
consideration,  413,  4.39. 
covenant  to  give  upon  a  contingency,  434. 
deed  absolute  on  its  face  defeats  trust,  373. 


708  Index. 

The  References  are  to  the  Pages. 

TRUSTS.— Cominued. 

not  delivered,  425. 
delivery  to  trustee,  139,  434,  note  2. 

of  subject-matter  of  gift,  426. 
deposit  in  bank,  331, 
divisions  of  subject,  412. 
donatio  mortis  causa,  36. 

donor  must  part  with  title  to  property,  419,  420. 
estoppel,  431. 
failure  to  name  beneficiary,  429. 

of  gift  for  lack  of  valid  conveyance,  412. 

to  inform  donee  of  gift,  425. 
gift,  cannot  be  changed  to  a  trust,  83. 
holder  of  savings  bank-book,  320,  note  2. 
husband  for  wife,  312. 

imperfect  gift  cannot  be  construed  as  a  trust,  413. 
intention  to  create  not  alone  sufficient,  421,  423. 
invalid  conveyance  as  a  declaration  of  a  trust,  412. 
marriage  settlement,  440. 
Massachusetts  cases,  343. 

notice  of  gift  to  donee  or   trustee,  331,  425,  426. 
order  by  donor  to  his  creditor  in  favor  of  donee,  432. 
parol  declarations  accompanied  by  acts,  424. 

evidence  to  show  intent  of  maker,  421,  note  1. 

to  contradict  written  instrument,  413,  note  2. 
presumption  arising  from  proof  of  delivery,  147. 
preventing  donor  desiring  to  execute  a  will,  437. 
promise  to  give  does  not  create,  437. 
purchase  in  name  of  stranger,  545. 

in  name  of  child,  547. 
redelivery  of  deed  of  trust  to  donor,  426. 
reser\'ation  of  control  over  gift,  434. 
retaining  control  over  deposit,  333. 
revocation,  91,  331,  338,  436. 
seal,  when  a  deed  of  gift  must  have,  431. 
specific  performance,  413,  420,  422,  note  2. 
statute  of  wills,  evading,  426,  note  5. 
stock,  350,  417,  note, 
sufficiency  of  language  to  create,  419. 
testamentary  gift,  430. 

title  must  be  relinquished  by  donor,  419,  420,  427,  429. 
when  passes,  424. 
when  donor  will  be  held  as  a  trustee  of  a  note,  265, 

UNINTENDED  GIFT, 

revoking,  95. 
UNKNOWN  GIFT, 

donee  unaware  of  the  subject-matter  of  the  gift,  124. 


1 


Index.  709 

The  References  are  to  the  Pages. 

UNSOUND  MIND.    See  Fraud  and  Undue  Influence;  Insanity. 
USE, 

distinguished  from  right  of  possession,  112. 

proof  of  mere  use  does  not  show  a  gift,  52. 

reserving  right  to  use  gift,  77,  176,  178,  182. 
USURY, 

when  a  gift  may  be,  65,  note  4. 
VALUE, 

advancement,  estimating,  605,  607,  608. 
presumption  as  to,  594. 

entire  estate  as  a  donatio  mortis  causa,  39. 

gift's  value  in  showing  fraud,  445. 
to  uphold  gift,  207. 
VENDEE, 

may  make  a  gift  of  property  sold  him  on  a  condition,  66. 
VERDICT.    SeeJuKY. 

when  court  may  direct,  187,  note  1. 
VOLUNTARY  ASSIGNMENT. 

when  invalid,  256. 
VOLUNTARY  CONVEYANCE.    See  Specific  Performance. 

consideration,  5. 
VOLUNTARY  TRUSTS.    See  Trusts. 
WAGES, 

gift  to  child  by  parent,  49. 

by  husband  to  his  wife  of  his  own,  50, 
WARD.    See  Guardian. 

gift  to  guardian,  441. 
AVAREHOUSE  RECEIPT, 

gift  for  goods  stored  in  warehouse,  174,  note  4. 
WATCH, 

gift  or  advancement,  561, 
WEARING  APPAREL, 

gift  to  child,  159,  note  2. 

WIDOW, 

advancement  by,  569,  note  2. 
when  subject  to,  601. 

WIFE, 

delivery  of  gift  to  by  husband,  149,  154. 
deposit  in  her  and  her  husVjand's  name,  320. 

remaining  in  her  name  after  marriage,  312. 
donatio  mortis  causa  to  husband,  186,  note  1. 
gifts  by,  51. 

to  her  husband,  51,  426. 

from  third  persons,  53. 


710  Index. 

The  Keferences  are  to  the  Pages. 

y^YF'E.— Continued. 

husband  purchasing  gift  for,  152. 

ill-treatment  of  wife  by  husband,  when  may  be  shown,  210. 

may  receive  a  gift  from  her  husband,  49. 
effect,  49,  note  3. 
mingling  her  property  with  her  husband's  may  be  a  gift  to  him,  52, 

note  4. 
misconduct  of  does  not  affect  settlement  made  upon,  213. 
note  payable  to  her  and  her  husband,  266. 
personal  ornaments,  152,  note  2. 
possession,  when  gift  made  to,  151,  note  1. 

of  real  estate  to  wife  taken  by  her  husband,  395. 
proof  of  wife's  gift  to  her  husband,  209. 
purchase  for  by  husband,  212. 
real  estate  giving  to  husband,  369. 

rents  and  profits  of  her  land  collected  by  her  husband,  210. 
rule  of  hotchpot  applicable  to,  601. 
separate  estate  may  give  away,  52. 
stock  given  to,  347,  note. 

placed  in  her  and  her  husband's  name,  356. 

WILL, 

advancement,  declaring  what  shall  be  so  considered,  583,  593. 

cannot  be  taken  as  a  donatio  mortis  causa  when  insufficiently  executed, 

38. 
confirming  gift  by  will,  393. 
deed  cannot  serve  as  a  will,  36. 
execution  after  advancement  made,  536. 
after  gift  made,  219,  note  4. 
effect  as  to  delivery  of  deed,  171. 
gift  intended  to  operate  as  a  will,  447. 

opportunity  to  make  does  not  invalidate  donatio  mortis  causa,  28. 
reference  in  to  gift,  202. 

revoking  a  donatio  mortis  causa  by  means  of,  43. 
trust  created  when  donee  prevented  the  execution  of,  437. 

WILLS  ACT, 

does  not  afiect  donatio  mortis  causa,  24,  40. 

WITNESSES, 

competency,  230,  615. 

number  of  required  to  show  gift,  195. 

WRITING, 

indorsement  on  gift  not  sufficient  to  show  a  gift,  175. 

slate,  writing  on,  120. 

when  may  be  probated  as  a  will,  119,  note  1. 


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